OFFICIAL
Wai 903, A57
THE TAKING OF MAORI LAND FOR PUBLIC WORKS IN
THE WHANGANUI INQUIRY DISTRICT: 1850 – 2000
Philip Cleaver
A Report Commissioned by the Waitangi Tribunal: September 2004
Table of Contents
INTRODUCTION ............................................................................................................................................ 6
CHAPTER 1: OVERVIEW OF PUBLIC WORKS TAKINGS OF MAORI LAND WITH
REFERENCE TO THE WHANGANUI INQUIRY DISTRICT ............................................................... 10
1.1 INTRODUCTION ....................................................................................................................................... 10
1.1.1 Public Works Legislation in English Law ...................................................................................... 10
1.1.2 Maori Land Tenure and Public Works Principles ......................................................................... 12
1.2 THE APPLICATION OF PUBLIC WORKS PRINCIPLES TO MAORI LAND, 1840-1863 .................................. 14
1.2.1 Whanganui Maori Land and Public Works from 1840 to 1863 ..................................................... 15
1.2.2 Legislative Provisions for Public Works Takings prior to 1863 .................................................... 16
1.3 THE INTRODUCTION OF PUBLIC WORKS PROVISIONS TO MAORI LAND, 1863-64................................... 18
1.3.1 Land Clauses Consolidation Act 1863........................................................................................... 18
1.3.2 Public Works Lands Act 1864........................................................................................................ 19
1.4 THE ‘FIVE PERCENT RULE’ – THE LEGISLATIVE RIGHT TO TAKE A PERCENTAGE OF MAORI LAND
WITHOUT COMPENSATION FOR ROAD AND RAIL PURPOSES, 1862-1927 ..................................................... 21
1.4.1 Application of the ‘Five Percent Rule’ to Whanganui Maori Land ............................................... 27
1.5 THE EXTENSION OF GENERAL PUBLIC WORKS LAND-TAKING POWERS TO LOCAL AUTHORITIES, 1860S 1928 ............................................................................................................................................................. 29
1.5.1 Early Actions of Whanganui Local Authorities.............................................................................. 32
1.5.2 Further Public Works Provisions for Local Authorities ................................................................ 34
1.5.3 Issues in Whanganui Case Studies of Local Authority Takings ..................................................... 38
1.6 GENERAL DEVELOPMENTS IN PUBLIC WORKS PROVISIONS, 1870S-1928 .............................................. 40
1.6.1 Immigration and Public Works Act 1870....................................................................................... 41
1.6.2 Public Works Act 1876................................................................................................................... 42
1.6.3 Whanganui Maori Land and Public Works in the 1870s ............................................................... 43
1.6.4 Public Works Act 1882................................................................................................................... 44
1.6.5 Whanganui Maori Land and Public Works in the 1880s ............................................................... 46
1.6.6 Public Works Act 1894................................................................................................................... 49
1.6.7 Public Works Legislation after 1894.............................................................................................. 52
1.6.8 Public Works Provisions in Other Legislation............................................................................... 53
1.6.9 Issues in Whanganui Case Studies from the 1880s to 1928 ........................................................... 54
1.7 GENERAL PUBLIC WORKS TAKINGS OF MAORI LAND (CENTRAL AND LOCAL GOVERNMENT), 1928-2000
..................................................................................................................................................................... 61
1.7.1 Public Works Act 1928 and Amendments ...................................................................................... 62
1.7.2 Public Works Act 1981................................................................................................................... 67
1.8.3 Issues in Whangnaui Case Studies from 1928 to 2000 .................................................................. 70
1.8 CONCLUSION .......................................................................................................................................... 76
CHAPTER 2: SCENIC RESERVES OF THE NORTH ISLAND MAIN TRUNK RAILWAY –
RANGIWAEA (1910), WHAKAPAPA GORGE (1911), AND WAIMARINO (1912) ............................ 80
2.1 INTRODUCTION ....................................................................................................................................... 81
2.2 THE SCENERY PRESERVATION MOVEMENT AND RELATED LEGISLATION .............................................. 82
2.3 SCENIC RESERVES ALONG THE NORTH ISLAND MAIN TRUNK RAILWAY ............................................... 84
2.4 RANGIWAEA SCENIC RESERVE (1910).................................................................................................... 94
2.5 WHAKAPAPA GORGE SCENIC RESERVE (1911) ...................................................................................... 98
2.6 WAIMARINO SCENIC RESERVE (1911).................................................................................................. 103
2.7 CONCLUSION ........................................................................................................................................ 112
CHAPTER 3: DEFENCE – WAIOURU TRAINING GROUND TAKINGS (1942 AND 1961)........... 115
3.1 INTRODUCTION ..................................................................................................................................... 115
2
3.2 THE ESTABLISHMENT OF WAIOURU TRAINING GROUND ...................................................................... 115
3.3 THE 1942 TAKING ................................................................................................................................ 119
3.4 FAILURE TO AWARD COMPENSATION FOR THE 1942 TAKING .............................................................. 122
3.5 BACKGROUND TO THE 1961 TAKING .................................................................................................... 125
3.6 THE 1961 TAKING ................................................................................................................................ 148
3.7 COMPENSATION FOR THE 1961 TAKING ............................................................................................... 151
3.8 THE 1973 TAKING ................................................................................................................................ 153
3.9 CONCLUSION ........................................................................................................................................ 154
CHAPTER 4: EDUCATION – KORONITI NATIVE SCHOOL SITE ACQUISITION (1899) AND
DISPOSAL (1977) ........................................................................................................................................ 157
4.1 INTRODUCTION ..................................................................................................................................... 157
4.2 THE GIFTING OF THE SCHOOL SITE ....................................................................................................... 157
4.3 DISPOSAL ............................................................................................................................................. 163
4.4 EFFORTS TO HAVE THE SCHOOL SITE RETURNED ................................................................................. 167
4.5 PRESENT OWNERSHIP ........................................................................................................................... 180
4.6 CONCLUSION ........................................................................................................................................ 180
CHAPTER 5: RAILWAYS – TAKING OF LAND FOR THE NORTH ISLAND MAIN TRUNK
RAILWAY AND ADDITIONAL TAUMARUNUI TAKINGS (1907, 1915, 1917, AND 1919) ............ 182
5.1 INTRODUCTION ..................................................................................................................................... 182
5.2 THE TAKING OF LAND FOR THE NORTH ISLAND MAIN TRUNK RAILWAY............................................. 183
5.3 THE QUESTION OF COMPENSATION ...................................................................................................... 187
5.4 ADDITIONAL TAKINGS AT TAUMARUNUI.............................................................................................. 193
5.5 RETURN OF RAILWAY LAND AT TAUMARUNUI..................................................................................... 194
5.6 CONCLUSION ........................................................................................................................................ 194
CHAPTER 6: RAILWAYS – MARAEKOWHAI TAKINGS (1932 AND 1934) ................................... 197
6.1 INTRODUCTION ..................................................................................................................................... 197
6.2 BACKGROUND ...................................................................................................................................... 197
6.3 THE TAKING OF LAND FOR THE TRACK (1932)..................................................................................... 198
Total...................................................................................................................................................... 199
6.4 THE TAKINGS FOR THE PROTECTION OF THE BUSH (1932 AND 1934)................................................... 199
6.5 COMPENSATION .................................................................................................................................... 206
6.6 CONCLUSION ........................................................................................................................................ 208
CHAPTER 7: URBAN AMENITIES – TAKINGS FROM BLOCK XIVA OF TAUMARUNUI
NATIVE TOWNSHIP FOR GOVERNMENT AND MUNICIPAL BUILDINGS (1911, 1915, 1917,
AND 1937)..................................................................................................................................................... 211
7.1 INTRODUCTION ..................................................................................................................................... 214
7.2 BACKGROUND ...................................................................................................................................... 215
7.3 THE 1911 TAKING ................................................................................................................................ 217
7.4 THE 1915 TAKING ................................................................................................................................ 218
7.5 THE 1917 TAKING ................................................................................................................................ 222
7.6 THE 1937 TAKING ................................................................................................................................ 223
7.7 PRESENT OWNERSHIP OF THE TAKEN LANDS ....................................................................................... 228
7.8 CONCLUSION ........................................................................................................................................ 230
CHAPTER 8: URBAN AMENITIES – TAUMARUNUI HOSPITAL (1917) ........................................ 234
8.1 INTRODUCTION ..................................................................................................................................... 234
8.2 BACKGROUND ...................................................................................................................................... 234
8.3 THE TAKING ......................................................................................................................................... 235
8.4 COMPENSATION .................................................................................................................................... 247
8.5 CONCLUSION ........................................................................................................................................ 250
3
CHAPTER 9: ROADING – KAUARAPAOA ROAD (1890), WAIARUHE ROAD (1903),
KAWAUTAHI ROAD (1922), AND WHANGANUI RIVER ROAD (1932) .......................................... 254
9.1 INTRODUCTION ..................................................................................................................................... 254
9.2 KAUARAPAOA ROAD (1891) – PUKETARATA BLOCK ........................................................................... 255
9.3 WAIARUHE ROAD (1903) – RAKETAPAUMA BLOCK ............................................................................ 256
9.4 KAWAUTAHI ROAD (1922) – RETARUKE BLOCK.................................................................................. 259
9.5 WHANGANUI RIVER ROAD (1930) – VARIOUS BLOCKS ....................................................................... 260
9.6 CONCLUSION ........................................................................................................................................ 265
CHAPTER 10: METAL PITS – OHAKUNE SCORIA PIT TAKING (1968) AND DISPOSAL (1998)
........................................................................................................................................................................ 267
10.1 INTRODUCTION ................................................................................................................................... 267
10.2 EXTRACTION OF METAL PRIOR TO TAKING ........................................................................................ 267
10.3 THE TAKING ....................................................................................................................................... 271
10.4 COMPENSATION .................................................................................................................................. 272
10.5 REVOCATION OF TAKING.................................................................................................................... 274
10.6 CONCLUSION ...................................................................................................................................... 283
CHAPTER 11: METAL PITS – OHOTU GRAVEL PIT TAKING (1931) AND DISPOSAL (1994).. 287
11.1 INTRODUCTION ................................................................................................................................... 287
11.2 THE TAKING OF OHOTU GRAVEL PIT ................................................................................................. 288
11.3 TAKING AND DISPOSAL OF SURFACEMAN’S COTTAGE SITE ............................................................... 288
11.4 DISPOSAL OF GRAVEL PIT .................................................................................................................. 290
11.5 CONCLUSION ...................................................................................................................................... 293
CHAPTER 12: METAL PITS – OTUKOU METAL PIT AND QUARRY TAKING (1969) ............... 296
12.1 INTRODUCTION ................................................................................................................................... 296
12.2 THE TAKING ....................................................................................................................................... 297
12.3 COMPENSATION .................................................................................................................................. 299
12.4 MOVES TOWARD DISPOSAL................................................................................................................ 299
12.5 CONCLUSION ...................................................................................................................................... 301
CHAPTER 13: WATER SUPPLY – KAI IWI TAKINGS (1904, 1969, AND 1975).............................. 305
13.1 INTRODUCTION ................................................................................................................................... 305
13.2 TAKING FROM KAI IWI 5C, 5E, AND 6J, 1904 .................................................................................... 306
13.3 TAKING FROM KAI IWI 5E2, 1969 ...................................................................................................... 308
13.4 TAKING FROM KAI IWI 5E2, 1975 ...................................................................................................... 310
13.5 CREATION OF EASEMENTS OVER KAI IWI 5E2, 1999 .......................................................................... 311
13.6 CONCLUSION ...................................................................................................................................... 311
CHAPTER 14: CONTEMPORARY DISPOSAL PRACTICE FOR CROWN LAND ......................... 313
14.1 INTRODUCTION ................................................................................................................................... 313
14.2 DISPOSAL PROVISIONS OF THE PUBLIC WORKS ACT 1981.................................................................. 313
14.3 MECHANISMS FOR THE PROTECTION OF MAORI INTERESTS................................................................ 318
14.4 PROTECTION MECHANISM FOR SURPLUS CROWN LAND..................................................................... 320
14.5 SITES OF SIGNIFICANCE PROCESS ....................................................................................................... 321
14.6 DISPOSALS UNDERTAKEN PRIOR TO INTRODUCTION OF PROTECTION MECHANISMS .......................... 322
14.7 CONCLUSION ...................................................................................................................................... 323
BIBLIOGRAPHY ........................................................................................................................................ 325
4
Figures
Figure 1: Location of Case Studies .................................................................................................................. 80
Figure 2: Rangiwaea Scenic Reserve............................................................................................................... 95
Figure 3: Whakapapa Scenic Reserve.............................................................................................................. 98
Figure 4: Waimarino Scenic Reserve............................................................................................................. 102
Figure 5: Koroniti School Site ....................................................................................................................... 158
Figure 6: Areas Taken from Maraekowhai Blocks for Track Protection, 1932 and 1934 ............................. 196
Figure 7: Block XIVA of Taumarunui Native Township................................................................................. 210
Figure 8: Takings from Block XIVA, 1911, 1915, 1917 and 1937 ................................................................. 211
Figure 9: Maata Tuao’s Sketch Plan ............................................................................................................. 212
Figure 10: Lots 1 – 17 of DP 17949............................................................................................................... 213
Figure 11: Taumarunui Hospital Site ............................................................................................................ 233
Figure 12: Kauarapaoa Raod Deviation........................................................................................................ 253
Figure 13: Waiaruhe Road............................................................................................................................. 256
Figure 14: Kawautahi Road........................................................................................................................... 258
Figure 15: Whanganui River Road ................................................................................................................ 261
Figure 16: Ohakune Scoria Pit ...................................................................................................................... 266
Figure 17: Ohuta Gravel Pit .......................................................................................................................... 286
Figure 18: Otukou Metal Pit and Quarry....................................................................................................... 295
Figure 19: Water Supply Takings from Kai Iwi 5E2 ...................................................................................... 304
5
Introduction
My name is Philip Cleaver. I have a Master of Arts in history from Victoria University and
have been working as a commissioned researcher for the Waitangi Tribunal and the Crown
Forestry Rental Trust since 1999. I have prepared reports for the Hauraki, Gisborne,
Urewera, and Wairarapa ki Tararua inquiries. Two of these earlier projects also concerned
public works issues: a report on roading in the Urewera and a report on public works
takings in the Wairarapa ki Tararua district, which was co-authored with Cathy Marr and
Lecia Schuster.1
This report was commissioned by the Waitangi Tribunal to examine the acquisition of
Maori land for public works purposes in the Whanganui Inquiry District.2 The structure of
the report is the same as that of the Wairarapa ki Tararua public works report. Chapter 1
provides an overview of the development of public works legislation and policy, and
discusses how provisions for the taking of Maori land were applied in the Whanganui
Inquiry District. The remaining chapters present detailed case studies that explore the issues
raised in the overview. This structure serves to test for the Whanganui Inquiry District the
extent to which the actions of central government and local authorities conform with
existing conclusions about the ways Maori land has been acquired for public works
purposes.
The case studies examined in Chapters 2 to 14 have been selected from takings that were
identified by claimants during consultation and in statement of claim documents. A number
of claimants noted public works issues when responding to a questionnaire that was
prepared in April 2002 to help focus the Whanganui research. Also, when research began
on this project, a letter requesting further information was sent to all claimants on the
CFRT’s Whanganui mailing list. Claimants have also spoken of public works concerns at
1
Philip Cleaver, ‘Urewera Roading’, a report commissioned by the Crown Forestry Rental Trust, June 2002;
Cathy Marr, Philip Cleaver, and Lecia Schuster, ‘The Taking of Maori Land for Public Works in the
Wairarapa ki Tararua Inquiry District: 1880-2000’, a report commissioned by the Waitangi Tribunal,
December 2002.
6
research hui held at Raetihi in March 2003 and at the Chateau Tongariro in September
2003. A list of many of the issues raised by claimants is presented in the scoping report
completed in May 2003.
The case studies do not examine public works takings that have been addressed in other
research. This includes, for example, the takings for scenic reserves along the Whanganui
River, which has been examined by Robin Hodge.3 Similarly, the disposal of Waikune
prison site has been examined by Cathy Marr.4 This report also does not discuss issues
relating to the Whanganui River, which have been addressed by the Tribunal in the
Whanganui River Report.5
In selecting the case studies, a number of factors were considered. Most importantly, the
case studies – with one notable exception – concern the acquisition of land under the
provisions of public works legislation, which involves a distinct set of issues and principles.
Chapter 4, which examines the acquisition and disposal of the Koroniti Native School site,
does not concern a public works taking, but it has been included because it provides an
example of how the government dealt with land that was gifted by Maori for public works
purposes.
Another consideration when selecting the case studies was to ensure that they would enable
the breadth of issues surrounding public works takings to be examined. These issues
concern, for example, the extent to which owners were consulted, the difference between
central government and local authority takings, and the way lands were disposed of when
they were no longer required. Chapter 14 specifically examines contemporary disposal
practice, an important issue that was raised during consultation with claimants.
2
The boundaries of the Whanganui Inquiry District were defined by a direction issued on 25 February 2003.
See Wai 903, document 3.5.8.
3
Robin Hodge, ‘The Scenic Reserves of the Whanganui River: 1891-1986’, a report commissioned by the
Waitangi Tribunal, 2002.
4
Cathy Marr, ‘Waimarino Purchase Report’, a report commissioned by the Waitangi Tribunal, September
2004.
5
Waitangi Tribunal, Whanganui River Report, Brookers, Wellington, 1999.
7
The case studies have also been chosen to show the main uses for which land in the
Whanganui Inquiry District has been acquired for public works purposes. The case studies
therefore include takings for transport infrastructure, scenery preservation, military training
grounds, urban amenities, and power development purposes. The case studies are also
geographically representative, providing examples of takings from all areas of the Inquiry
District.
Lastly, the case studies have been selected to provide an adequate chronological spread,
enabling an examination of the ways that legislation and the attitudes of taking authorities
have changed. The earliest takings discussed in this report are from the 1880s. Before this
time, the government and local authorities seem to have negotiated informal use rights with
Maori owners. Many of the case studies concern takings from the twentieth century, when
most takings of Maori land carried out.
The predominance of twentieth century case studies also reflects the fact that archival
evidence is generally not available for earlier takings. It appears that much of the early file
evidence concerning public works takings has been lost or destroyed. It may also have been
the case that early takings were generally less well documented. This was certainly the
situation where land was acquired under the rule that enabled up to five percent of a block
to be taken for roads or railways without notification or compensation. Except where the
five percent rule was applied, the survival of archival evidence for twentieth century
takings seems to have been entirely random. The existing files do not represent a bias
towards particular sorts of takings, such as those where objections were made by owners.
While most of the case studies are based on substantial file evidence, this has not always
been possible and some of the takings are therefore described only briefly. These case
studies are still useful because they show the purpose for which land has been taken and the
type of procedure that was followed when the taking was executed. In some of the case
studies, where there is little available information concerning the taking, substantial
evidence is presented on disposal issues.
8
Owing to the time and resources available and a lack of relevant documents, this report
does not attempt to identify and quantify all the areas of Maori land that have been taken
for public works purposes in the Whanganui Inquiry District. It has also not been possible
to provide an accurate breakdown of the type of taking – for example, the five percent rule
– or the respective areas acquired by central government agencies and local authorities.
9
Chapter 1: Overview of Public Works Takings of Maori Land with
Reference to the Whanganui Inquiry District
1.1 Introduction
1.1.1 Public Works Legislation in English Law
The concept of the Crown or State having the right to take privately owned land for public
works purposes arose from principles that were developed in England and incorporated into
English legislation.6 These principles, subsequently introduced and modified in New
Zealand, were formulated over many centuries and were one of the few developments in
English law that overrode the protection of private land ownership. As public works
principles were developed, it was recognised that the needs of the ‘common-good’ could
sometimes outweigh private property rights.
The principles emerged in conjunction with the evolving balance of power between the
sovereign and the land-owning class in England.7 Landowners sought to ensure that land
was not taken without significant protections to meet their needs and concerns. As early as
1215, the Magna Carta prohibited the unlimited right of the sovereign to deprive
landowners of their freehold interests by royal prerogative. This principle was further
developed by English judges in the seventeenth century, when the right of the sovereign to
take private property for the ‘common-good’ was recognised in times of emergency and
great danger, but was otherwise restricted by protections for landowners. Gradually, the
prerogative power of the Crown to take land without special legislation became so
diminished that it was thought to be possible only in times of special necessity such as
wartime.
6
This chapter is based largely on the introductory chapter that Cathy Marr wrote for the Wairarapa ki Tararua
public works report, which has been adapted here to reflect the particular issues of the Whanganui Inquiry
District. Marr’s chapter in the Wairarapa ki Tararua report summarises her own research into the acquisition
of Maori land for public works purposes. See Cathy Marr, ‘Public Works Takings of Maori Land: 18401981’, Waitangi Tribunal Rangihaua Whanui series (working paper: first release), May 1997.
10
The development of public works land-taking principles was considerably boosted by
landowners themselves during the industrial revolution of the eighteenth and nineteenth
centuries.8 During this time, the land-owning class was often heavily involved in investing
in new infrastructure such as railways and canals. Though they were affected by the land
taking required for these developments, which were generally considered to be for the
public good, the loss of land was often regarded as being outweighed by overall economic
gains to landowners. This further influenced the kinds of protections and limitations that
were provided for public works land takings.
By the nineteenth century, a number of major principles had been developed with regard to
the Crown’s established right to take land for public works purposes.9 These principles
included the view that affected landowner were entitled to adequate notice and consultation
regarding a proposed taking. Principles of notification and consultation were provided for
at a general level by requiring special Acts of Parliament for each proposed work that
involved the taking of land. Parliament at this time was dominated by landowners, and it
therefore sought to protect the interests of this class by scrutinising land-taking proposals.
The proposals had to be explained and win majority support from the landowners
themselves before they were passed into law. As those involved could well find themselves
in similar circumstances, they had a strong interest in ensuring that the proposals were
acceptable and provided adequate protections. Once proposals had legislative support,
affected landowners also had the right to be individually notified and to make and have
heard well-grounded objections.
There were also some established protections for the kind of land that could be taken – with
more stringent protections or exemptions for land that had more than a monetary value to
the landowner. This included land occupied by features such as the landowner’s family
home, gardens, orchards, and ornamental plantings. Other land that was regarded as being
similar to a commercial investment – for which adequate compensation could be paid – was
associated with lesser protections. The owner was entitled to full equivalent compensation
7
8
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, p 15.
Ibid, pp 17-18.
11
for the land taken. By the nineteenth century, the preferred compensation was a cash
payment to the value of the land taken, which enabled the rapid reinvestment of capital in
other land or investments that would continue to generate wealth.
Although it was generally held that a landowner’s legal interest in taken land ceased with
the taking, some principles also acknowledged the impact of the compulsory nature of the
land taking on private property rights. The owner of the land that remained after the taken
land had been cut off was generally recognised to have the first opportunity to buy back the
land if it was no longer required. In some cases, this right of offer back also extended to
neighbouring landowners. However, the land offered back had to be purchased as full
compensation had already been paid.
As land takings for public works purposes became more frequent, the numerous technical
requirements and protective principles were codified into a set of provisions that could be
applied to any public works proposal put before Parliament. This included provisions for
processes such as notification, objections, compensation, and offer back. In England, these
were first codified in the Lands Clauses Consolidation Act 1845 and the Railways Clauses
Consolidation Act 1845.
1.1.2 Maori Land Tenure and Public Works Principles
The legal principle of the Crown’s right to take land for public purposes and the associated
protective provisions were introduced into New Zealand with the British acquisition of
sovereignty from 1840.10 As noted, this was a legal development that English landowners
had long been involved with to ensure that their interests were protected – and even
possibly advanced. The laws that were seen to apply to New Zealand on the assumption of
sovereignty were introduced with the proviso that their implementation would take into
account special circumstances in the new Colony. It can be assumed that these included the
circumstances under which sovereignty had been acquired in New Zealand, through the
Treaty of Waitangi and its associated guarantees of protection to iwi. The principles could
9
Ibid, pp 18-20.
12
therefore have been expected to develop further to accommodate iwi concerns and
expectations concerning their lands.
It does not seem that the principle of taking (or at least the use of) privately owned land for
a common-good purpose necessarily undermined or challenged traditional Maori concepts
of land management or that it was a breach of Treaty principles.11 In traditional concepts of
Maori land tenure, individual rights to land and resources were subject to the greater needs
of hapu and iwi. The common-good aspect of land required for public purposes appeared to
sit well with this. It also seems that many Maori communities were initially eager to
encourage small Pakeha settlements and the associated trade opportunities. Maori were
willing to allow the use of their land for public purposes to encourage this settlement,
especially where it seemed these public works would provide mutual benefit. In reaching
early agreements over the use of their land for public purposes, Maori also appear to have
welcomed consultation and the apparent establishment of long-term partnership
arrangements.
It seems, therefore, that the overall principles of land use for common-good or public
purposes may not, in themselves, be generally contentious in public works Treaty claims.
Instead, issues tend to arise from the way in which the public works principles were
imposed on Maori and the later development and application of these principles without
adequate concern for Maori interests. These include general issues such as the lack of
adequate consultation and agreement with Maori over the introduction of public works
land-taking principles into New Zealand. Other issues include the failure to develop a
genuine partnership with Maori over public works decision making and the insistence on
acquiring full title to land for public works purposes, rather than the lesser use rights that
Maori landowners preferred.
More specific issues arise over the general development and application of the principles to
Maori land in later years. These include the development of separate provisions, often
10
11
Ibid, pp 30-31.
Ibid, p 37.
13
discriminatory and confusing, which applied specifically to the taking of Maori land for
public works purposes. There are also issues relating to the inadequacy of protections for
Maori land in the processes for consultation, notification, and compensation. Issues also
arise from central government extending taking powers over Maori land to local authorities
without adequate legal requirements to ensure that Maori were represented on these bodies.
In many cases, these developments offer a stark contrast to the way that provisions and
protections had been developed with the concurrence of English landowners in previous
centuries.
It is not possible to provide a statistical analysis for the whole of New Zealand that
compares the area of Maori and general land taken for public works purposes. However,
given that land in Maori ownership rapidly diminished through the late nineteenth and
twentieth centuries, it seems clear that the imposition of compulsory taking provisions
(even when relatively small areas of land were involved) had significant consequences for
Maori landowners and communities. This was particularly so when remaining land
contained waahi tapu or sites of special significance. The continued loss of land through
compulsory provisions was often regarded as a direct affront to Treaty guarantees and a
barrier to developing a more cooperative partnership between Maori communities and the
Crown over land required for public purposes.
1.2 The Application of Public Works Principles to Maori Land, 1840-1863
Government officials assumed that English common and statute law could generally be
applied to New Zealand from 1840.12 By the mid-1840s, after a short-lived attempt to assert
the Crown’s authority over ‘waste’ land, government officials acknowledged that Maori
had customary interests in all land, which were protected by Treaty guarantees. Maori
landowners would therefore clearly be affected by any automatic imposition of English
public works provisions. As noted earlier, Maori communities initially appeared willing to
allow use of their land for works that would encourage small Pakeha settlements, especially
where such works appeared mutually beneficial. It therefore seems possible that, with
14
genuine consultation, Maori may have accepted some form of public works principles,
especially if these were modified to take account of their concerns.
However, government officials and settlers avoided consulting with Maori leaders over the
introduction and possible modification of public works provisions. For some time, this was
achieved through a policy of purchasing large areas of Maori land ahead of settlement
needs.13 At the same time, Crown land required for public purposes was excluded from land
that was sold to settlers. This helped to avoid the need to apply compulsory public works
taking provisions to either Pakeha or Maori land. By 1853, the government had purchased
about 32 million acres of land under this policy, around half the land area of New
Zealand.14 In 1848, a block of around 80,000 acres was purchased from Whanganui Maori.
Comprising about four percent of the total area of the Inquiry District, the 1848 purchase
included the site of Wanganui township and was the focus of early European settlement in
the district.
Between 1840 and 1863, government officials tended to adopt a gradualist approach rather
than asserting the Crown’s authority to secure Maori land for public works purposes.15 This
was particularly the case with the roads that were required to open up the country for
settlement. Rather than attempting to insist on a right of Queen’s highway, government
officials engaged in considerable negotiation with Maori leaders. These negotiations often
involved offers of road work and tended to focus on the usage of the required land, rather
than obtaining Crown ownership. As a result of this approach, Maori appear to have gained
the impression that the government was committed to negotiations over public works and
that their concerns regarding their land would be taken into account.
1.2.1 Whanganui Maori Land and Public Works from 1840 to 1863
12
Ibid, pp 30-31.
Ibid, pp 34-36.
14
W J Gardner, 'A Colonial Economy’, in W H Oliver and B R Williams (eds), The Oxford History of New
Zealand, Oxford University Press, Auckland, 1981, p 61.
15
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 37-38.
13
15
In the Whanganui Inquiry District, public works that involved Maori land during the period
from 1840 to 1863 appear to have been limited to the construction of roads through the
1848 purchase reserves and areas adjacent to the purchase block. As in other districts, the
government believed that it was necessary to negotiate with Maori over public works.
Indeed, the balance of power at this time meant that Maori could easily obstruct unwanted
works, with disputes potentially escalating to threaten the peace of the district. In March
1857, the chief Aperahama Te Tipae halted works on a road that was being formed through
reserve land near the Whangaehu River. In a report to the Superintendent of Wellington
Province, Resident Magistrate Durie claimed that the chief had taken this action because he
had not been consulted about the road.16 Durie suggested that a plough be gifted to the chief
as an apology for the ‘want of courtesy in not giving him notice or informing him about the
proposed road.’ Durie noted that an arrangement had been reached whereby work on the
reserve was to continue with Maori labourers. Another writer contested the Resident
Magistrate’s account of events, stating that Te Tipae had known and agreed to the road and
had stopped it only because he wished to secure work for Maori labourers.17 If an
agreement over a public work could not be reached with Maori land owners, works might
be obstructed indefinitely. This occurred in the late 1850s when the chief Manai prevented
the formation of a road through Putiki reserve. In March 1857, Durie reported that he was
unable to persuade Manai to desist from obstructing the works. The Resident Magistrate
clearly believed that it would be unwise to force the matter, claiming that a ‘mild approach’
was in the best interests of peace.
1.2.2 Legislative Provisions for Public Works Takings prior to 1863
While early agreements with Maori offered the potential to establish partnership
arrangements over public works requirements, they were often viewed simply as a means of
avoiding outright conflict at a time when Maori communities were still in a position of
considerable power. Many of these agreements provided for public use without settling the
important issues that underlay use. In many cases, Maori actually gifted land for public
purposes, which offered the opportunity to strengthen relations between the two parties.
16
Durie to Featherston, 18 March 1857, WP 3 1857/211, ANZ Wellington.
16
Maori tended to assume the gift would last as long as the public use, but again officials
tended to avoid explicitly addressing this issue. There appears to have been little real
attempt to consult with Maori regarding long term public works land-taking principles and
how these might be modified to reflect the interests and concerns of Maori landowners.
The relatively rare need to take land for public works purposes from 1840 to 1863 was
reflected in the minimal legislative provisions passed for any kinds of public works takings
during this period.18 The few public works provisions passed before the late 1850s were
limited to mainly Pakeha-dominated settlements. Early provisions, such as the Public
Roads and Works Ordinance 1845, were also more concerned with providing the authority
to levy rates to pay for the construction, maintenance and repair of public works on land
already purchased, rather than to provide the authority to take such land. Throughout the
period, Maori land was protected from compulsory public works provisions on the
insistence of the British government. From the late 1850s, provincial governments began
sponsoring Acts for particular types of public works, such as railways. Although in general
they did not refer to Maori land, many of these Acts began to include provisions from the
Imperial Land Clauses Consolidation Act 1845, which provided for land-taking procedures
and associated protections. Maori and Crown land was generally exempt from rating at this
time.
During the period from 1840 to 1863, Maori or ‘native land’ was increasingly regarded as
being limited to Maori customary land.19 Government officials encouraged Maori to hold
their land by Crown-grant, but do not appear to have explained the obligations of such
tenure, including the imposition of public works requirements. As public works provisions
began to appear in legislation, settlers claimed that Crown-granted Maori land could not
theoretically be considered exempt from these provisions in the same manner as customary
‘native’ land was.20 However, in practice, it seems that compulsory public works provisions
were not applied to Crown-granted Maori land until the early 1860s.
17
Unknown to Featherston, 18 March 1857, WP 3 1857/211, ANZ Wellington.
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 38-39, p 43.
19
Ibid, p 29.
20
Ibid, p 42.
18
17
1.3 The Introduction of Public Works Provisions to Maori Land, 1863-64
By the early 1860s, Pakeha settlers were beginning to outnumber Maori, and they appeared
increasingly confident of imposing their authority over Maori communities and their
lands.21 Settlers, and the governments that they elected, were also becoming increasingly
impatient with Maori concerns about continued land sales and frustrated by the need to
consult with Maori over the application of provisions such as for public works. This
increasing sense of confidence and impatience, and Maori resistance to it, helped push New
Zealand into the wars that began in the early 1860s. The first general legislation enabling
compulsory land taking for public works was introduced into New Zealand during wartime,
in association with wartime measures such as the confiscatory New Zealand Settlements
Act 1863. Maori were not represented in Parliament at this time and therefore played no
part in the introduction of public works legislation in New Zealand, which contrasts with
the role English landowners had played in developing the principles and protections
associated with public works land takings.
1.3.1 Land Clauses Consolidation Act 1863
The first general public works measure that was passed, the Lands Clauses Consolidation
Act 1863, was heavily based on similar English provisions that codified land-taking
procedures.22 This included similar machinery for notification, objections, the protection
for certain types of land, and a means of resolving disputes and determining compensation.
It also provided for both purchase by agreement and ‘compulsory purchase’ and required
that records be kept of the land taken and compensation paid. It specified a time limit for
the taking authority and provided that surplus be offered back first to the owners of the
taken land and then to adjoining landowners. The 1863 Act, while providing the general
machinery for takings, also continued the pattern developed in England of assuming that
authority for specific takings would still need parliamentary approval. In passing the Act,
the New Zealand Parliament confirmed that it would only consider protections and
principles that had been developed in an English environment. It ignored the negotiations
21
22
Ibid, pp 47-54.
Ibid, pp 54-55.
18
and discussions that had already taken place with Maori landowners regarding land
required for specific purposes. There was, however, some disagreement over whether the
1863 Act applied to some or all Maori land. As a result, the settler Parliament passed the
Public Works Lands Act 1864. This was the first specific legislative authority for central
government to take Maori land, whether Crown-granted or customary. It seems to have
been specifically aimed at Maori land as other lands were generally covered by the 1863
Act.
1.3.2 Public Works Lands Act 1864
The 1864 Act was passed largely as a wartime measure that sought to improve security in
certain districts.23 The preamble noted that the Act was for the ‘civilization of certain parts
of the Colony’. The taking provisions for Maori land appear to have been aimed at strategic
works, particularly roads, in areas where Maori were deemed to be hostile. It seems likely
that there was an expectation that takings of Maori land under the 1864 Act would be
implemented by force of arms. The Act had been introduced with the particular aim of
facilitating settlement in Taranaki by giving the government authority to make a road
between Wanganui and New Plymouth, through territory dominated by hostile Ngati
Ruanui.24 This was one of several strategically significant road-lines in the North Island,
which had been recommended for construction in a report prepared by the government in
1863.25
As wartime legislation, the 1864 Act appears to have offered fewer protections for Maori
owners than for general landowners. Under the Act, Crown-granted and customary Maori
land could be defined by an Order in Council and then taken without notice or making any
application to those owning the land. There were no protections for lands in use or
occupation, or for waahi tapu, and also no right of offerback for surplus lands. There was
no time limit on takings and no provision for purchase by agreement.
23
24
Ibid, pp 55-57.
Claudia Orange, The Treaty of Waitangi, Allen and Unwin, Wellington, 1987, pp 171-172.
19
In terms of compensation for takings, the 1864 Act discriminated against less ‘civilised’
customary land. Compensation for Crown-granted Maori land was to be determined under
the provisions of the Land Clauses Consolidation Act 1863. However, compensation for
customary Maori land was to be determined under the wartime New Zealand Settlements
Act 1863. Those deemed rebel under that Act were not entitled to any compensation at all
even if the land was taken only for public works purposes. This meant that for customary
Maori land, there was virtually no distinction between confiscation and compulsory taking
for public works purposes.
There is no evidence that Maori land within the Whanganui Inquiry District was taken
under the 1864 Act.26 It appears that the Act may have only been used for Maori land
takings in areas where Maori were deemed to be in rebellion. In other districts, it seems that
the government chose not to employ the Act because it wished to avoid aggravating
relations with local Maori, who might have associated any takings with the confiscation of
lands carried out under the New Zealand Settlement Act. Whanganui Maori, for example,
would have been very aware of the confiscation of lands in neighbouring Taranaki. In the
Whanganui Inquiry District, the government appears to have used Maori land for public
works purposes without obtaining legal title. This was the case even with the important
road that was constructed north from Wanganui, which had been the focus of the 1864 Act.
The section of this road that falls within the Whanganui Inquiry District, lying between the
Whanganui and Waitotara Rivers, appears to have been first surveyed in the mid-1850s.
The construction work of this road seems to have begun in the early 1860s, prior to the
passage of the 1864 Act.27 The road passed through Maori-owned land at Kai Iwi. In 1864,
work was obstructed by Maori from Waitotara, who do not appear to have been affected
landowners but were afraid that the road was being made for ‘war-like operations against
them’.28 Work on the road to Waitotara, and beyond to Patea, commenced again in about
25
Alfred Domett, ‘Memorandum on Roads and Military Settlements in the Northern Island of New Zealand’,
5 October 1863, AJHR, 1863, A-8A.
26
The New Zealand Gazette was searched for Orders in Council made under the Act.
27
Memorial of settlers to Featherston, undated 1862, WP 3 1862/241, ANZ Wellington.
28
Hogg to Superintendent, 9 November 1864, WP 3 1864/901, ANZ Wellington.
20
1871, after the resistance led by Titokowaru had been defeated.29 There is no evidence that
Maori land-owners opposed the formation of the road at this time.
The 1864 Act began the application of general public works provisions to Maori land,
whether customary or Crown-granted. However, from this time, there were a number of
developments that extended powers relating to the taking of Maori land. One of these was
the provision for a percentage of Maori land to be taken for roads and railways – without
compensation. This separate development became effective in 1865 and lasted until 1927,
when it was finally abolished. It began in the Native Land Acts, but was then incorporated
into general public works legislation. This development is described in more detail in the
following section. The 1864 Act originally applied only to the acquisition of land for public
works by central government. Another significant development saw taking powers over
Maori land extended to local authorities. This development is also described later in more
detail, along with the issues arising from it, including the government failure to require the
local authorities to take adequate account of Maori concerns. In conjunction with these
developments, there were also a number of developments in general public works
provisions applying to Maori land. These are also described in more detail in later sections.
These various developments are described separately for the sake of clarity. However, it
needs to be remembered that in practice, their application often overlapped. This created a
climate of confusion (and opportunity) that appears to have been a significant factor in
promoting the general view among taking authorities that Maori land was a cheaper and
often easier option to take when land was required for public works purposes.
1.4 The ‘Five Percent Rule’ – the Legislative Right to Take a Percentage of Maori
Land Without Compensation for Road and Rail Purposes, 1862-1927
The five percent rule, which applied to Maori land from the mid-1860s to 1927, arose out
of a general measure that sought to meet the special settlement requirements of a new
29
‘Report of the Assistant Engineer-in-Chief’, AJHR, 1871, D-5, p 4.
21
colony.30 It was intended to provide for roading (and later rail) needs while land was still
being opened for settlement. It enabled the government, when selling Crown land in
sparsely settled areas, to retain a right to take a certain percentage of such land for a limited
time to provide for future roading (and later rail) needs. For such land, some of the normal
protections concerning compensation for a public work land taking did not apply. In
particular, it was not considered necessary to determine and pay full compensation for each
taking. Instead, a more general form of compensation was provided. For example, Crown
land was often sold at a reduced purchase price to take account of the right to take roads.
The five percent rule was intended as a temporary measure, applying to a type of land that
was expected to disappear as settlement increased. This was Crown-granted land in
outlying areas, where often only the outside boundaries of a block had been surveyed. As
this land was not closely occupied, there was generally little disturbance if roads were
made. (Indeed, settlers generally welcomed roads because they increased the value of their
land.) As land became more closely settled and surveyed, this type of land diminished. The
rule did not apply to land that had been properly surveyed and was in reasonably close
occupation, which remained subject to normal public works compensation protections.
Even where it did apply, the rule had clear limits. It could only be exercised for a certain
time period after the land was sold or surveyed (generally five years, as in the Lands Act
1877), and it only applied to a certain percentage of land in a block – normally up to five
percent.
Initially, Maori land was exempt from the five percent rule. However, when the
government created the Native Land Court, it took the opportunity to extend the rule to
Crown-granted Maori land as it passed through the Court. The original Native Lands Act
1862 included a provision that enabled the Governor to take and lay off up to five percent
of land purchased from Maori without compensation or time limit.31 This provision applied
only to purchasers of Maori land, and was seemingly intended to place them in a similar
position to purchasers of Crown land.
30
31
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 63-64.
Ibid, p 66.
22
The Native Lands Act 1865, under which the Court became operative, contained a
provision that allowed up to five percent of Maori land to be taken for roading without
compensation.32 This provision (s 76) now referred not to purchased land but to land
granted under the Act. It applied to all Crown-granted Maori land investigated by the Court,
whether sold or not. This provision could have been used to help Maori develop their land
through the provision of required roading. However, in the circumstances of the time, it
appears to have often been used to meet Pakeha settlement needs and as a means of
‘opening up’ Maori land whether Maori wanted the roads or not. There was no requirement
to consult over the need for the roading or the line the road should take. There were some
minimal protections. The Governor could endorse a deed to prevent the rule from being
applied, and land containing buildings, gardens, orchards, plantations, or ornamental
grounds could not be taken under the rule. However, these protections were essentially
eurocentric and did not provide for other areas valued by Maori, such as waahi tapu.
Although the rule may have been extended to include Crown-granted Maori land with the
intention of treating it similarly to other Crown-granted land, it was developed and applied
in a manner that saw it have a far harsher impact on Maori land. For instance, the right to
take a percentage of Maori land without compensation for roads was extended to ten years
and then fifteen years, while the rule for ordinary Crown-granted land generally remained
at five years. There were also no general compensatory allowances for Maori land taken
under the rule, contrasting with its application to Crown land that was purchased by settlers.
While the application of the rule for general land diminished as districts became more
closely settled and surveyed, the reverse was true for Maori land, which was increasingly
being brought before the Native Land Court. Maori owners had no greater chance of
avoiding the rule than they had of keeping their land out of the Land Court, while the
general rule only ever applied to a minority of settlers who chose to take up land in outlying
areas. In addition, the roads (and later rail) required under the rule were generally provided
to assist settlers and were welcomed because they increased land values. The situation was
32
Ibid, pp 66-68.
23
quite different with Maori land. Maori had their own traditional routes and did not always
welcome the creation of new roads, especially when they did not appear to benefit from
them as much as settlers. The provision of roading was also often associated with land loss
because roads brought increased pressure for Maori land to be opened for European
settlement. Roads were also seen as bringing in other unwelcome measures such as rating,
which created further pressure to alienate land.
After being introduced in the Native Land Acts of the mid-1860s, the five percent rule was
extended into various public works statutes in a confused tangle of legislative provisions
that remained until the rule was finally abolished in 1927.33 In brief, the original right
provided in the Native Lands Acts 1862 and 1865 was continued in the Native Land Act
1873 (s 106). This allowed up to five percent of Crown-granted Maori land to be laid off
for roads without compensation. However, additional protections were included for land
occupied by Maori pa, villages, and cultivations as well as the usual buildings, gardens
orchards, plantations, and burial and ornamental grounds. This measure also provided that
the rule could be applied for railways as well as roads. The Governor could release the land
from the liability and the right was extended to ten years from the date of the grant. No
survey of Maori lands could be made without the authority of the inspector of surveys (s
74). The Native Land Amendment Act 1878 (no 2) (s 14) extended the time limit for the
rule from ten to fifteen years. This extension did not just take effect from 1878 – a Court of
Appeal judgment found that the extended fifteen-year time limit effectively applied to all
Maori land Crown-granted since 1868.
The rule was also continued in later Land Acts and amendments, Native Land Claim
Adjustment Acts, and Native Land Court Acts and amendments. It was also referred to in
and continued in various Public Works Acts and amendments – although the provisions in
the Public Works and Native Land Acts did not always appear to coincide. Some of the
public works legislation seemed to merely confirm the provisions that had been created in
the Native Land Acts. For example, the Immigration and Public Works Act 1870 (s 50) and
the Public Works Act 1876 (s 73) provided that no compensation was payable, even though
33
Ibid, pp 68-79.
24
this was already allowed in other Acts. Other public works legislation sought to amend the
provisions. For example, the Immigration and Public Works Act 1872 (s 36) provided that
where the rule was used under the Native Land Acts, it was lawful to construct a railway in
place of a road.
The Public Works Act 1880 (s 20) extended the five percent rule to include all Maori land
that had gone through the Land Court and for which certificates of title or memorials of
ownership had been issued. This meant that it no longer applied only to Maori land for
which Crown-grants had been issued. The limitation of a maximum of five percent of the
land without compensation still applied. This was continued in the Public Works Act 1882
(s 23). The Native Land Court Act 1886, which repealed the Native Land Act 1873,
confirmed the Crown’s right to take up to five percent of Maori land with Crown-derived
title for public roads without compensation. It also continued similar protections such as
those for pa, villages, cultivations, and gardens. The taking right was deemed to cease 15
years after the date of any title issued under the 1886 Act and at the times stated in previous
Acts for title issued under them. The 1886 Act also provided for private road access to
partitions of Maori land.
The Public Works Act 1894 confirmed the right to take a percentage of Maori land for road
and rail without compensation (ss 91 to 95). However, this right now applied not just to
Maori land held under Crown-derived title, but also to land for which the Court had yet to
determine title (presumably customary Maori land). In such cases, it was up to the ‘opinion
of the Native Land Court’ to ensure that the taking did not exceed the five percent that
would normally be allowed. The Governor could still release the land from this liability,
and similar protections such as for pa, villages, cultivations, and gardens were continued.
The time limit for applying the rule was poorly drafted in the 1894 Act. It was stated as
being fifteen years for land granted under the Native Land Court Act 1886 and the specified
period of any Act prior to and repealed in 1886. A Supreme Court decision in 1912 found
that as not all earlier legislation had been repealed in 1886, the 1894 Act reopened the time
limits indefinitely for Maori land that was Crown-granted in 1865 and 1873. The Chief
25
Justice noted that this seemed unfair, but he anticipated a parliamentary remedy, which was
eventually made in the Native Land Act 1913.
The Public Works Acts 1905 and 1908 continued the rule in terms of the 1894 Public
Works Act. The Public Works Amendment Act 1909 also continued the rule, tidying up
some of the provisions where the Courts had identified problems and inconsistencies. The
Native Land Act 1909 repealed the provisions concerning the rule in the Public Works Acts
1894, 1905, and 1908. Sections 387 to 394 of the 1909 consolidated and clarified previous
provisions concerning the rule and also added new ones. The Governor could, at any time,
and without the consent of any person or paying any compensation, proclaim roads to be
laid out on customary Maori land. These roads would then become Crown land free of
native title. The Governor could also lay out roads without consent or compensation on
customary land with a freehold order within fifteen years of the date of the order. The
maximum land that could be taken under the rule was still five percent. The Governor could
exercise this right regardless of any changes of ownership of the land. Most protections for
buildings, gardens, orchards, plantations, villages, and burial grounds remained, although
pa and ornamental grounds were now dropped. If land was taken for a railway, the same
provisions applied. These provisions contained the same error regarding the time limit for
the rule that was identified by the Supreme Court in 1912 for the Public Works Act 1894.
The Native Land Amendment Act 1913 continued the rule and, as noted previously,
corrected the time limit errors that had been identified in the Public Works Act 1894 and
later legislation. The limitation was now set at fifteen years from the date that title was
determined by the Native Land Court or otherwise (s 127). These provisions remained
largely unchanged until 1927, when the rule was finally abolished in the Native Land
Amendment and Native Land Claims Adjustment Act 1927 (s 30).
Though the exact area is difficult to calculate, the application of the five percent rule saw
the effective confiscation of a substantial amount of Maori land over a sixty-year period.
The rule helped to create an environment that encouraged central and local government
taking authorities to adopt the view that Maori land was generally easier and cheaper to
26
take than other land. The tangle of provisions the government created resulted in significant
confusion for taking authorities. As noted, the Courts identified ‘insensible’ wording in
provisions concerning the five percent rule. In addition, various forms of the rule were
present in different legislation, which was not always consistent. For example, for some
considerable time, the rule provided protections for land with pa, villages, cultivations, and
burial grounds, but no compensation when land was taken.
Taking authorities were clearly given more opportunity to take Maori land when the five
percent rule was added to general public works provisions. For the same work, they could
apply a mix of taking provisions to best suit their requirements. For example, they might
take up to five percent of an area of Maori land for a particular work under the five percent
rule, and then take the remainder under general provisions. Similarly, they might take
ordinary Maori land under the five percent rule and then take the area occupied by a pa or
other protected site under general provisions.
The five percent rule also undermined traditional protections intended to provide redress if
takings were not properly made. Because compensation was not paid under the rule, one of
the major needs for documentation was removed, and this limited the extent to which
takings could be effectively challenged. The opportunity to challenge takings was further
hampered by the nature of Maori land title, which made it difficult for the often large
number of owners to work together sufficiently and make taking authorities accountable in
Court. It also appears that central government failed to adequately monitor the application
of the rule to Maori land. There is no record of taking authorities being required to justify
their application of the rule or to properly adhere to the restrictions in terms of quantities of
land or time limits. This appears to have been left largely to the taking authorities
themselves.
1.4.1 Application of the ‘Five Percent Rule’ to Whanganui Maori Land
With regard to the Whanganui Inquiry District, it is not possible to accurately determine
how much Maori land was taken under the five percent rule. However, it is clear that the
27
rule was commonly applied in the district. Two examples of takings under the rule are
provided in Chapter 9, which examines the acquisition of land for roading purposes: the
1890 taking of 13 acres from Puketarata block for Kauarapaoa Road, and the taking in 1903
of 26 acres from Raketapauma block for Waiaruhe Road. These takings were respectively
carried out under section 92 of the Native Land Court Act 1886 and section 93 of the Public
Works Act 1894. It is notable that one of the two other road takings examined in Chapter 9
also involved land being acquired without compensation, though not under the five percent
rule. In 1922, road-lines through Retaruke block, an area of 39 acres, were proclaimed
public roads under section 48(2) of the Native Land Amendment Act 1913. Compensation
was not required under this provision, which enabled the legalisation of road-lines laid off
when land was partitioned. The remaining case examined in Chapter 9 concerns the
acquisition of land for a section of the Whanganui River Road in 1930, after the five
percent rule had been abolished.
The five percent rule was also applied to Maori land taken for railway purposes within the
Whanganui Inquiry District. Most significantly, as explained in Chapter 5, the rule appears
to have been employed for the taking of the land required for the track and stations of the
North Island Main Trunk railway. In this case, the rule was applied in spite of a promise to
pay compensation, which the government made to Maori in the early 1880s before work on
the line commenced. Though compensation was awarded in 1890 to the owners of some
King Country blocks, there is no evidence that any compensation was paid for the section
of the railway that passed through the Whanganui Inquiry district. In 1903, the SolicitorGeneral advised that the government was not liable to compensate the owners, apparently
believing that the five percent rule was applicable. It is also evident that the rule was
applied to many of the additional takings for the Main Trunk railway. This is apparent from
an examination of such takings of land in and around Taumarunui, which is also discussed
in Chapter 5. Following the abolition of the five percent rule in 1927, Apirana Ngata
commented that, in applying the rule, ‘the railways have been notorious offenders’.34
28
1.5 The Extension of General Public Works Land-taking Powers to Local Authorities,
1860s - 1928
At the same time as the five percent rule was developed, legislation was introduced to
extend land-taking powers to local authorities, including provisions relating to Maori land.
Prior to 1876, local authorities such as road boards and provincial councils could only take
Crown-granted Maori land for public purposes. Early attempts to extend the taking powers
of local authorities initially failed, even with regard to general land. Instead, provincial
councils, for example, were required to sponsor separate Acts of Parliament for each work
they wanted to undertake that involved land taking for public works purposes.
As noted earlier, Parliament passed legislation providing land-taking procedures for central
government agencies from 1863, and these powers were extended under the Public Works
Lands Act 1864 to include all types of Maori land. Local authorities also began to push to
have their general powers regarding public works extended at this time, including over
Maori land. As part of this, local authorities became more assertive in exercising their
claimed rights over Crown-granted Maori land although their legal position in this respect
was not entirely clear. For example, in Taranaki, the Omata Road Ordinance 1863 enabled
the provincial council to take a road through a Crown-granted Maori reserve. Provincial
councils also sought to have their general public works powers extended to all Maori land.
The government first attempted to address this with the proposed Provincial Compulsory
Land-taking Act 1863, which was intended to enable provincial councils to take any type of
Maori land under general provisions.35 However, the Imperial government disallowed this,
insisting that such takings had to be through the General Assembly rather than a local
council responsive only to local interests.
The government continued its attempts to extend local authority powers for general public
works in other areas. The Provincial Compulsory Land-taking Act 1866 finally enabled
provincial governments to take land for general public purposes, without separate Acts of
34
Ngata to Buck, 9 February 1928, in M P K Sorrenson (ed.), Na To Hoa Aroha, From Your Dear Friend:
The Correspondence Between Sir Apirana Ngata and Sir Peter Buck, 1925-1950, volume one, Auckland
University Press, 1986, p 69.
29
Parliament each time, as long as such takings conformed to the general Land Clauses
Consolidation Act 1863.36 Customary Maori land was still excluded, but the 1866 Act did
now specifically include Crown-granted Maori land and Maori reserves within provincial
government taking powers. Subsequent provincial legislation conformed with this. For
example, customary Maori land was exempted from the provisions of the Wellington
Province District Highways Act 1867 (s 17). The authority of local authorities to rate Maori
land to pay for public works was also extended.
Although local authorities at this time still did not have specific land-taking powers over
customary Maori land for general public works purposes, they do appear to have begun
using much more extensively those powers they did have over Crown-granted Maori land.
This was encouraged by the public works boom of the 1870s. It is not clear how real the
exclusion of customary Maori land was in practice. Local authorities developed a close
relationship with central government agencies over public works takings and, at this time,
they appear to have begun a long tradition of seeking the assistance of central government
agencies when this was necessary. It should also be noted that the five percent rule for
Crown-granted Maori land for road and railways was in operation by this time.
The power of local authorities to take all types of Maori land for public works purposes
under general taking provisions was finally given specific legislative authority with the
passage of the Public Works Act 1876.37 This development occurred at the same time that
the system of provinces and provincial governments was abolished. The measure seems to
have been incorporated into the general provisions to provide the replacement local
authorities (such as county and borough councils) with relevant public works powers. It is
also notable that the public works boom of the 1870s had greatly increased local authority
involvement in public works, especially in rural areas, where much importance was placed
on the formation of roads.
35
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, p 54,
Ibid, p 58.
37
Ibid, pp 86-89.
36
30
As local authorities became increasingly powerful in matters concerning public works, the
issues of rating and public works requirements became a major source of antagonism with
Maori communities.38 While the government extended the public works powers of local
authorities to Maori land, it failed to take account of Imperial government concerns that
such powers might be exercised without adequate concern for Maori interests. During the
1870s, the government did provide for Maori involvement in local administration, although
this was almost entirely within the Native Department system. Maori had almost nothing to
do with the machinery of settler local administration – highways and harbour boards,
provincial councils, and after 1876, county and borough councils.39 This meant that Maori
were not in a good position to deal adequately with these new forms of machinery as the
government extended their taking powers. The government failed to provide any legislative
requirement for local authorities to take special account of Maori interests when exercising
their taking powers. Nor did it provide an adequate system of monitoring the use of such
powers
In the 1870s, central government agencies did make some attempt to mediate between
settler-dominated local authorities and Maori communities, particularly in the North Island,
where tensions remained high after the wars and Maori were still able to physically resist
encroachments on their land.40 This was especially true while Donald McLean was
influential in government, but before long these efforts were abandoned in the face of
settler opposition. McLean, for example, sponsored the Native District Road Boards Bill
1871, which encouraged Maori to create their own form of local authority for building
roads and other public works through Maori-controlled boards in Maori districts. However,
this was proposed to apply only to Maori customary land, and it was opposed by Maori
who wanted boards with both Pakeha and Maori involvement. Maori were also concerned
that customary land would become rated. In the end, the Bill was not passed because
Pakeha politicians were reluctant to support any special recognition of Maori authority.
38
Ibid, pp 98-99.
Alan Ward, A Show of Justice, Oxford University Press, Auckland, 1974, p 269.
40
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 102-104.
39
31
Although he abandoned the attempt to give Maori more power in their own districts,
McLean did create a system where Native Department officials negotiated with Maori
communities over public works requirements, especially when tensions flared over taking
powers being imposed without adequate consultation. This was a policy reminiscent of the
one McLean had engaged in when negotiating blanket land purchases before the wars, with
a similar pattern of largely undocumented promises and assurances as part of the
negotiations. For example, where tensions ran high, his officials would negotiate Maori
consent to road proposals and often enter into interim (largely undocumented) agreements
in order to avoid the outright conflict that imposition of compulsory provisions might
provoke. This policy helped to ease some antagonism between local authorities and Maori
communities, at least while the threat of conflict remained real.
By the late 1870s, McLean’s system was abandoned as settlers and the government felt
more confident about imposing public works provisions without consulting Maori. By the
early 1880s, the Minister for Public Works acknowledged that local authorities appeared to
be acting in a manner that discriminated against Maori when it came to asserting their
public works powers. He noted that local authorities appeared to be falling below the
procedures that the Public Works Department had developed in dealing with Maori over
land required for public works. Local authorities appear to have often been unresponsive or
even antagonistic to Maori concerns. However, they also lacked the funds and expertise of
central government and had to deal with the tangle of legislative provisions open to them.
Given these circumstances, as well as inadequate monitoring and discriminatory provisions
concerning Maori land, it is hardly surprising that councils chose what often appeared to be
the easiest and cheapest option for public works – Maori land. The government’s failure to
require local authorities to take account of Maori concerns or to set up a local authority
system that provided for adequate participation by Maori meant that antagonisms between
local authorities and Maori communities continued well into the twentieth century.
1.5.1 Early Actions of Whanganui Local Authorities
32
Little evidence has been located with regard to how local authorities in the Whanganui
Inquiry District initially exercised their taking powers over Maori land. One early example
involving the Wanganui Harbour Board suggests that local authorities sought help from
central government to negotiate with Maori over public works takings. In December 1878,
the Board requested the Native Minister, Sheehan, to assist in negotiating with the owners
of Kaiwhaiki reserve to obtain stone for river improvement works.41 Sheehan, accompanied
by members of the Board and Resident Magistrate Booth, reached an agreement with the
owners that enabled the Board to purchase stone from the reserve.
As time passed, local authorities in the Whanganui Inquiry District acted with greater
independence in cases where Maori land was required for a public work. This shift
followed a move away from negotiating with Maori over takings, which was increasingly
seen to be unnecessary. The knowledge and status of central government officials and
politicians had been helpful when local authorities had undertaken negotiations with Maori.
The earliest local authority taking among the case studies of this report is the Wanganui
Borough Council’s 1904 taking of land at Kai Iwi for water supply purposes. In this case,
which is presented in Chapter 13, the local authority acquired the land compulsorily and
was assisted by the Public Works Department only in the issuing of the proclamation. In
1907, the Harbour Board negotiated directly with the Maori owners of Kaiwhaiki reserve
for a ten year right to quarry stone.42
The independence of local authorities when dealing with Maori over public works in the
Whanganui Inquiry District seems to have been encouraged by the government from the
early 1880s. For example, in January 1881, Native Minister John Bryce believed it was
unnecessary for the Native Department to intervene after Maori had objected to the
government regarding the closure of an old track that provided direct access to Matatera Pa.
Commenting on a suggestion that the Department should communicate with the
41
Heather Bassett and Richard Kay, ‘1848 Whanganui Purchase Reserves’, a report commissioned by the
CFRT, 2004
42
Ibid. In 1920, an area of 60 acres was taken for quarry purposes from Kaiwhaiki 1A and 3.
33
Whangaehu Road Board on the matter, Bryce asserted that ‘generally such matters as this
must be left to the Local Bodies.’43
It seems that Whanganui Maori were uncomfortable with the extension of taking powers to
settler dominated local authorities. This is evident from the fact that all concerns relating to
public works matters seem to have been directed to the central government, an example
being the objection regarding the closure of the track to Matatera Pa. Similarly, when
requesting works, Whanganui Maori appear to have generally approached central
government politicians and officials. This was the case, for example, when requests were
made for the construction of a road from Ranana to Murimotu.44 Of the local authorities
that acquired taking powers, it was almost certainly the road boards that initially had the
greatest impact on Maori land owners in the Whanganui Inquiry District. Unfortunately, the
minute books of the road boards concern largely operational matters, providing little
indication of how decisions affecting Maori land were made.45 In May 1874, grievances
associated with the Road Board Act and the levying of rates on Maori lands were among
matters discussed by Henare Matua, the Hawkes Bay leader of the Repudiation Movement,
who was enthusiastically received by Whanganui Maori at local meetings.46
1.5.2 Further Public Works Provisions for Local Authorities
As local authority powers were extended to match those of central government, general
public works provisions tended to also apply to local authorities. (These are discussed in
more detail in the following section.) However, some legislative differences did still
continue to apply. In general, these appeared to recognise the generally lesser expertise and
resources of local authorities, and the somewhat differing interests of local authorities in
terms of public works requirements. For example, for many years the land-taking
procedures in public works provisions for local authorities provided for generally stricter
43
Woon, note on file cover NO/3909, 16 December 1880, MA-WANG 1 12, Letterbook, 1881-1883, ANZ
Wellington; Bryce, note on file cover NO/3909, 11 January 1881, MA-WANG 1 12, ANZ Wellington.
44
See, for example, ‘Notes of Native Meetings’, AJHR, 1885, G-1, p 6.
45
These minute books are held at the Wanganui City Council Archive, Wanganui.
46
Resident Magistrate, Upper Whanganui, to Under-Secretary, Native Department, 16 June 1874, AJHR,
1874, G-2, p 15.
34
requirements than for central government. A pattern was established whereby local
authorities had to provide more information and assurances on certain matters before the
Governor would issue taking proclamations. Central government agencies, normally the
Public Works or Lands Departments, were required to lay a memorial before the Governor
with details of the land to be taken, the proposed works, and relevant certified maps. In
contrast, a local authority was additionally required to have the memorial signed by two of
its members and to include a statutory declaration signed by the chief executive officer. The
declaration had to state that the local authority had the power necessary to undertake the
work, that all legal provisions had been complied with, that a decision had been made to go
ahead with the work, and that sufficient compensation was available.47 The Governor could
normally accept this declaration as sufficient without inquiring behind it, although later
provisions required that, if there were concerns about the local authority’s ability to pay
compensation, the Governor could delay making the proclamation.48
Possibly to ensure that local authorities did meet all their legislative requirements, an
informal monitoring system appears to have been developed whereby local authorities
commonly sent their applications for taking proclamations to central government agencies.
The applications were then forwarded by the central government agency to the Governor
for proclamation. This was in addition to the assistance that central government agencies
often provided local authorities by surveying the land required. The central government
agency (most commonly the Public Works Department) then often advised the local
authority on whether all legal requirements had indeed been met. A ‘roads proclaimed’
register, which has survived for the period 1888-1891, shows details of works such as
roads, bridges, and lighthouses, and the assistance provided by the Public Works
Department in guiding local authorities through the taking process.49 This administrative
practice did provide a form of monitoring to ensure local authorities acted properly
regarding takings. It may also have been linked to the fact that, in many cases, central
47
See, for example, section 11 of the Public Works Act 1882, and also similar sections in later legislation,
including section 18 of the Public Works Act 1894, sections 23 and 24 of the Public Works Act 1928, and
section 26 of the Public Works Act 1981.
48
See, for example, section 19 of the Public Works Act 1894.
49
ABWN W5280 36, Roads proclaimed, 1888-1891, ANZ Wellington.
35
government was paying subsidies or even fully funding a work and could therefore exert
some pressure on local authorities to act carefully.
The practice whereby local authorities sent applications for taking proclamations to central
government agencies was not legally required. It simply appears to have been an
administrative practice, one which local authorities could choose not to use as they were
always legally entitled to send the necessary information directly to the Governor General
for proclamation. Therefore, although the government had an administrative monitoring
process that could have been extended to ensure more adequate protection of Maori
interests, it failed to introduce it as a legal requirement. Even when central government
taking authorities became more interested in Maori concerns, local authorities could choose
to avoid the informal monitoring process.
From 1876, local authorities acquired considerably extended powers to take Maori land for
public works as general provisions for public works were extended. Many of these
provisions, as noted previously, were made in the main public works legislation and will be
described further in that section. However, some provisions also provided for the special
needs and interests of local authorities with regard to local works. For example, the Public
Works Acts Amendment Act 1889 extended public works powers of local authorities to
include takings for drainage and railways purposes. Other provisions provided powers in
areas of local concern such as irrigation, water supplies, river control, soil conservation,
drainage, and local roading.
Following the general pattern, a number of special Acts outside the main public works
provisions also provided taking powers for local authorities in the area of local works.50 For
example, the Counties Act Amendment Act 1883 gave powers to county councils to control
and supply water for irrigation for farming. Powers included rights of survey, constructing
dams, and associated works (s 37). The Counties Act 1886 further extended county council
powers for irrigation and drainage and for taking local roads through native land (s 245).
50
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 122-123.
36
The Water Supply Act 1891 also extended powers concerning the building, controlling and
managing of water races including powers to take required lands and make compensation.
The River Boards Act 1884 gave control of all rivers, streams, and watercourses in a
district to a local river board. The boards could also construct works on tidal waters. The
Whanganui River Trust Board was constituted in 1891 with the objectives of maintaining
the navigability of the Whanganui River and ensuring that scenery along the banks of the
upper river was preserved.51 In 1893, the Board was empowered to take material for river
works from Crown-granted and customary Maori land, with compensation to be determined
by the Native Land Court.
The Sand Drift Act 1903 gave the Governor, on the petition of a local authority or
interested persons, the power to proclaim districts under the Act where schemes for
controlling sand drift could be applied including on Maori land. The Act was mainly
concerned with controlling rather than taking land but could also allow rating. The Land
Drainage Acts 1893 and 1908 extended the already substantial powers given local
authorities regarding drainage in the main public works legislation. This provided for the
establishment of drainage districts and boards to oversee drainage of lands for settlement.
Maori land could be taken for such purposes under the Public Works Act 1882 and
amendments.
From 1926, local authorities also became more directly involved in town planning
responsibilities. The Town Planning Act 1926 provided for planning schemes by local
authorities, and compensation was payable under public works Acts for land taken or
damage. Planning schemes were intended to deal with matters concerning roads, streets,
footpaths, buildings, reserves, recreation grounds, open spaces, objects of historical interest
or natural beauty, sewerage, drainage, water supply, amenities (including rubbish dumps),
and ancillary or consequential works in relation to these.
51
The activities of the Whanganui River Trust Board are discussed in the Whanganui River Report.
37
1.5.3 Issues in Whanganui Case Studies of Local Authority Takings
Four of the case studies presented in this report concern local authority takings of Maori
land: Chapter 7 examines the taking of land for a town hall site by the Taumarunui Borough
Council in 1917; Chapter 8 discusses the Taumarunui Hospital and Charitable Aid Board’s
acquisition of land for a hospital site in 1917; Chapter 11 concerns the taking of land for a
gravel pit by the Waimarino County Council in 1931; and Chapter 13 examines the
Wanganui Borough Council’s and City Council’s 1904, 1969, and 1975 takings for water
supply purposes.52 These takings reflect the significance of local authority takings of Maori
land in the Whanganui Inquiry District. The four case studies all deal with takings from the
twentieth century, shedding light on the issues and shifting practices of that period.
The 1917 takings for the town hall site and hospital site indicate that local authority takings
of Maori land sometimes exceeded the immediate requirements of the intended public
work, perhaps reflecting a perception that Maori land was relatively easy and inexpensive
to acquire. In the town hall case, an area of one acre was taken for the hall site, which
seems relatively large in light of the intended purpose of taking. The Borough Council
seems to have acquired the land without any definite plans to undertake the construction of
a town hall. Except for the erection of a small band room, the site was left vacant for at
least 20 years after the taking. In the hospital site case, the taken area of 38 acres was
considerably greater than the area that was required to meet the operational requirements of
the proposed hospital. It seems that the Hospital and Charitable Aid Board hoped to earn
revenue from the additional area by farming the land. The Minister of Public Health
believed that some of the land might later be sold to meet the cost of future capital works.
The taking of the 38 acres for the hospital site was carried out even though the Resident
Engineer of the Public Works Department thought that the area was excessive. This view
was shared by the Minister of Native Affairs, who was alerted to the proposed taking after
an objection was made by the owners. The hospital site taking indicates that there were
limitations in the extent to which the central government agency’s informal monitoring of
38
local authority takings provided a real protection for Maori owners. It is evident that, when
handling the proclamation process, the Public Works Department was influenced by
pressure that the local authority placed both on politicians and the Department itself. This
pressure appears to have carried considerably greater weight than the objection made by the
Maori owners. It is notable that the owners’ objection was directed to the Minister of
Works, indicating that they may have believed that an objection to the Hospital and
Charitable Aid Board would not have received fair consideration. In the case of local
authority takings, the formal objection process required written objections to be made to the
local authority.
Different issues are raised in the two other local authority takings that are examined in the
case studies. The case study dealing with the gravel pit acquired by the Waimarino County
Council reflects most significantly on contemporary disposal issues. In 1994, the Ruapehu
District Council sold the land to a descendant of the former owners, believing that it was
following the offer back provisions of the Public Works Act 1981, which is discussed later.
The offer back failed to acknowledge the interests of the many other former owners and
their descendants, showing that local authorities sometimes lacked the expertise and
resources to fulfil offer back that involved multiply owned Maori land.
The case study of the Wanganui Borough Council’s and City Council’s water supply
takings shows that, towards the end of the twentieth century, local authorities shifted away
from the compulsory acquisition of Maori land, and instead sought to secure it by
agreement with the owners. This trend was evident somewhat earlier in the taking practices
of central government agencies.
The local authority case studies also reflect on general issues such as the adequacy of
notification and objection provisions, and the procedure for determining compensation.
These issues are referred to in more detail in the following sections on developments in
general public works provisions.
52
Another local authority taking, which is not examined as a case study, was the 1924 taking by the Waitotara
County Council of 10 acres of Puketarata 4G1 for a worker’s dwelling.
39
1.6 General Developments in Public Works Provisions, 1870s-1928
The preceding sections have outlined some of the major trends that overlaid the
development of general provisions for public works purposes. The five percent rule and the
early extension of taking powers to local authorities have been described separately for the
purposes of clarity. This section outlines in more detail the development of general public
works provisions and their impact on Maori land. As noted earlier, central government had
acquired general powers of taking for public works purposes in 1863. These powers had
been specifically extended to all types of Maori land in 1864, although with significantly
lesser protections. The general provisions concerning public works takings, including those
impacting on Maori land, were considerably developed in subsequent years, usually in
response to the perceived needs of settlement.
The first developments occurred in the context of the public works boom of the 1870s,
which required an extension of existing public works provisions.53 The new legislation was
clearly aimed at meeting settler interests, with Maori increasingly being economically and
politically marginalised. Nevertheless, during this time, the public works provisions
affecting Maori land were generally intended to be similar to those applying to other land.
At first, as noted earlier, the government also pursued a policy of negotiation and
consultation in areas where there was a likelihood of significant Maori resistance to public
works. By the late 1870s, as settler society became more confident and dominant, these
policies of negotiation and consultation were largely abandoned as public works provisions
were increasingly imposed.
The public works provisions of the 1870s established a pattern for the development of
public works provisions in New Zealand. A principle Act set out authority for land takings
for public purposes, along with traditional protections. This was then followed by
numerous amendments for a variety of new public works purposes required for the
development of the settler infrastructure and economy. In addition, land-taking powers
were also included in numerous special Acts for particular public purposes. All the major
53
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 81-82.
40
public works Acts of this time also referred to the separate right to take Maori land for road
and rail purposes without compensation (the five percent rule) as described previously.
During the 1870s, protections in public works taking provisions for Maori land were
largely the same as the protections that applied to other landowners. The protections for
Maori land were somewhat eurocentric and did not include any modifications that took
account of Maori interests. For example, they applied to orchards and bridges, but not bird
snaring places or eel weirs.
1.6.1 Immigration and Public Works Act 1870
The provisions of the Immigration and Public Works Act 1870 were generally much more
neutral towards Maori land than had been the case in 1864.54 The major public works
envisaged were railways, roads, bridges, and water supplies, reflecting a general focus on
developing the country’s infrastructure. The 1870 Act included many of the procedures and
protections of the Land Clauses Consolidation Act 1863. The proposed taking had to be
publicly notified, and consideration had to be given to any objections. Compensation was
generally payable for taken land. The owners consent in writing was required before a road
could be made through any orchard, vineyard, garden, yard, park, or nursery (ss 49 to 53).
Compensation was also payable for damage to land in the removal of any gravel or stones
required (s 59). An independent assessment was provided for any owner dissatisfied with
compensation (s 61). Special provisions were made for railways and water supplies.
Later legislative amendments of the 1870s reduced standard protections for railways
takings as railways began to be seen as the most important infrastructure requirement. This
partly reflected the view of Pakeha settlers that the location of nearby rail links would be
far more beneficial than the loss of some land. Some amendments also increased rights to
negotiate for Maori land where this was considered to be valuable to the whole country. For
example, in cases where title had not been investigated by the Native Land Court, an 1871
54
Ibid, pp 83-86.
41
amendment enabled the Governor to enter negotiations for land required for gold mining
railways and special settlements.55
1.6.2 Public Works Act 1876
The next major public works legislation was the Public Works Act 1876.56 This
consolidated and clarified previous provisions, and as previously noted, also extended local
authority taking powers to all types of Maori land. In general, the 1876 Act retained many
of the procedures and protections of the previous 1870s public works legislation. The major
exception was for railway land, where each new railway project required a special Act of
Parliament, though there continued to be lesser protections for railways takings.
Compensation provisions were similar and compensation was to be decided by a new
Compensation Court. There were no marked distinctions in the treatment of Maori and
European land for public works takings, except that a surveyor required the written
permission of the Native Minister before entering Maori customary land.
Some of the 1876 provisions, while appearing neutral, did have the potential to impact
more harshly on Maori. For example, the Act contained a measure that all roads in public
use were to be declared vested in the Crown (s 80). This meant that many traditional roads,
which Maori had allowed settlers to use, became Crown land without compensation.
Similarly, roads that had been formed through Maori land by negotiation also passed into
Crown ownership. In the Whanganui Inquiry District, this included, for example, part of the
road that had been formed between the Whanganui and Waitotara Rivers. This provision
continued to be repeated in various legislation, especially the Native Land Acts, well into
the twentieth century.
Some of the protections of the 1876 Act also continued to be eurocentric. For example,
objections had to be made in writing by a very formal process and protected lands
continued to be in the nature of orchards, gardens, and vineyards, with no allowance for
areas traditionally valued by Maori, such as eel weirs. This was in strange contrast to the
55
Section 42 of the Immigration and Public Works Amendment Act 1871.
42
protections for the five percent rule which, as noted previously, also provided protections
for land occupied by Maori pa, villages, and cultivations, as well as – at different times –
buildings, gardens, orchards, plantations, burial grounds, and ornamental grounds.
As noted earlier, there were numerous amendments to the 1876 Act, including another
removal of protections for railways takings.57 The government could also sell taken land
that had become surplus to an education board, without having to comply with normal
disposal procedures including, offer back. The Public Works Act 1879 also authorised the
diversion and alteration of rivers and validated previously defective provisions. The Public
Works Act 1880 provided that the Governor was to act as claimant and the Minister as
respondent in claims for compensation for land taken from Maori reserves (s 12). As noted,
separate Acts were still required for railways, a number of which were passed in the 1870s,
reflecting the perceived importance of railways at this time. Some of these also contained
provisions regarding Maori land. For example, the Railways Construction Act 1878
allowed the Governor to purchase lands from Maori required for railways (s 4).
1.6.3 Whanganui Maori Land and Public Works in the 1870s
It is evident that, throughout much of the 1870s, the government continued to consult with
Whanganui Maori whose lands were required for public works purposes. As explained in
the previous section, this approach was also followed by local authorities, who sought the
assistance of central government officials and politicians when negotiating with Maori.
Land continued to be required principally for the construction of roads. It seems that the
government made offers of road work to encourage Maori to agree to the formation of
roads. In 1870, when funding was approved for a road from Wanganui to Murimotu and
Taupo, the government specified that the work was to be undertaken using Maori labour.58
Though aimed at securing Maori approval for roads, it was also thought that such work
would have ‘civilising’ benefits. The extent of Maori involvement in public works was
commented upon in the annual reports submitted by the Resident Magistrate.
56
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 86-90.
See, for example, the Public Works Amendment Act 1878.
58
Field to McLean, 3 August 1870, AJHR, 1871, D-1D, pp 11-12.
57
43
Whanganui Maori also sometimes requested roads and sought government assistance for
their construction. In October 1870, Major Kemp requested the formation of a road from
Ranana to Murimotu.59 Resident Magistrate Booth believed that, if formed, the road would
‘be one of the greatest boons ever conferred upon the Wanganui Natives’, enabling them to
make use of land that had been ‘locked up’ or used only rarely for hunting purposes.60
Funding for the road was approved by the government, with the work to be undertaken by
Maori over whose lands the road would pass.61 After work had begun from the Whanganui
River, members of Ngati Rangi hapu objected to the road, believing that it would result in
the loss of their land.62 In March 1871, Booth was instructed not to push the road through
the Ngati Rangi country.63
1.6.4 Public Works Act 1882
The relatively neutral period of general public works provisions of the 1870s ended with
the government’s response to Maori passive resistance centred at Parihaka.64 As noted, by
the late 1870s and early 1880s, there appeared to be far less government and settler
tolerance of Maori concerns about public works provisions, especially if these were
believed to conflict with the general settler ‘good’. The passive resistance of Maori at
Parihaka in Taranaki was met with harsh legislation and the dispersal of the Parihaka
community. The attempts at implementing confiscation in the district were closely linked to
public works projects such as roading, and the government response to Parihaka was
reflected in new general public works legislation in 1882.
The Public Works Act 1882 returned to the previous wartime pattern of separate
discriminatory provisions concerning the taking of Maori land for public works purposes.65
Some of the harshest measures were modified in later years, but from this time a long term
59
McLean to Kemp, 10 October 1870, AJHR, 1871, D-1D, p 19.
Booth to McLean, 8 October 1870, AJHR, 1871, D-1D, p 18.
61
Cooper to Booth, 25 October 1870, AJHR, 1871, D-1D, p 19.
62
Booth to Cooper, 21 February 1871, AJHR, 1871, D-1D, pp 25-26.
63
Cooper to Booth, 10 March 1871, AJHR, 1871, D-1D, pp 26-27.
64
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 105-107.
65
Ibid, pp 107-110.
60
44
pattern was established of separate provisions for Maori land in general public works
legislation, which lasted well into the twentieth century. While these remained generally
harsh for Maori customary land, Maori land with Crown-derived title was increasingly
brought under general taking provisions. Even so, the fact that Maori land was typically
placed in a separate section is likely to have encouraged taking authorities to believe that
Maori land was easier and cheaper to take, with less consultation required and only the
minimum of protections.
The 1882 Act contained many provisions relating to takings of general land for public
purposes that were similar to earlier legislation of the 1870s. Protections and procedures for
general lands were set out in Part II of the Act. The separate provisions for Maori land,
sections 23 to 26, dealt with powers for taking Maori land by the Governor for government
works. (They do not appear to have extended to local authorities, but it is not clear how
much this distinction applied in practice, given that there was a tradition whereby local
authorities sought the support and assistance of central government for particular works.)
Under the separate provisions, the Crown could take any Maori land under any title for a
government work without complying with any of the normal protections and requirements
(such as for notice and objections) associated with public works takings (s 24). The
government could simply take land two months after Gazette publication of an Order in
Council that specified the proposed works (s 25). It could also enter lands for surveys or
levels without giving any notice or any other application than the issuing of the Order in
Council (s 25). The consent of the occupiers only was required before entering cultivated
land, or damaging crops or dwellings (s 25). None of the protections in the main part of the
1882 Act, such as for gardens and orchards, applied to the taking of Maori land.
The 1882 Act also contained penalties for obstructing surveyors or anyone else involved in
the public work, or for destroying or damaging the work. The same penalties also appeared
in Part II of the Act, and seemed to have been included again in the section dealing with
Maori land for added emphasis. The 1882 Act also included new provisions for roads in
sparsely settled areas, which allowed the government to simply set out the endpoints of a
road and its approximate direction and width. After this, the road could be taken later
45
without fulfilling any of the requirements for protections in the Act. The government had
one year to tidy up the survey and proclaim the exact land taken.
In terms of compensation, for customary Maori land the Minister might make application to
the Native Land Court to ascertain what compensation should be paid and to whom. The
Court was also to have all the powers of the Compensation Court when making such
assessments, and compensation was to be paid to the owners as soon as possible after an
order was made. Interest not exceeding seven percent was allowed from the date of the
order (s 26). In contrast, for Crown-granted Maori land or where title was derived from the
Crown, compensation was payable as for European owned land. Presumably this meant that
compensation for such land was to be determined in the ordinary Compensation Court.
The Crown and Native Lands Rating Act 1882 also had significant implications for
Maori.66 This Act provided for the rating of both Crown-granted and customary Maori land
within five miles of a public road. Maori had feared such a measure, and many complained
that they had never wanted many of the roads that had been built.
1.6.5 Whanganui Maori Land and Public Works in the 1880s
In the Whanganui Inquiry District, the Public Works Act 1882 was employed when Maori
land was acquired for the North Island Main Trunk railway, though only after the
government had undertaken consultation with Maori. Between 1883 and 1885, as discussed
in Chapter 5, the government negotiated with Whanganui and King Country Maori over the
acquisition of land for the railway. It was only after Maori approval had been secured that
steps were taken under the 1882 Act to transfer the necessary land into Crown ownership.
The government followed this approach because it did not want to undermine its
relationship with Upper Whanganui and King Country Maori, which would have
jeopardised settlement objectives. The government was aware that a significant area of
Maori land was required for the work and also that Maori were concerned about the wider
impact of the railway. The government failed to fulfil a promise to pay compensation for
66
Ibid, pp 110-111.
46
the lands required for the railway, which had been an important aspect of the agreement
reached with Whanganui and King Country Maori.
Though negotiations were undertaken for the Main Trunk railway – a major public work
that involved a large area of Maori land – it appears that, from around the passage of the
1882 Act, and consistent with that Act, the government generally began to place less
emphasis on consulting with Maori over public works in the Whanganui Inquiry District.
Less concern for accommodating Maori interests can be identified, for example, in the
government’s response to the proposed closure of an old track at Nukumaru, which was
used by Maori to access the coast for fishing purposes. The track had not been excluded
from the Crown-grant that was issued for the land through which it passed. In 1882, the
European settler who held the grant wished to prevent Maori from continuing to use the
route, pointing instead to access provided by a nearby road. Reporting to the Native
Department, Resident Magistrate Booth stated that the Maori claimed that the alternative
road was difficult to negotiate with drays because it went through sandhills.67 In response,
the Under-Secretary, Lewis, advised that the government would not intervene in the matter,
instructing that the Maori were not to trespass on the old track.68 The Native Minister,
Bryce, commented that: ‘The Natives have no just cause of complaint and that it cannot be
a matter of much moment to them which of the two roads they use seeing how little value
Maori attach to time.’69
In the north of the Inquiry District, the government showed a greater willingness to push
through roads without the full support of Maori landowners. This was evident during the
construction of the road between Taupo and Murimotu, which was formed in the early and
mid-1880s. A dispute over this road was recorded by Resident Magistrate Scannell in his
annual report for 1885.70 Scannell detailed that, in April 1884, Maori at Poutu, near Lake
Rotoaira, had posted notices on their boundaries, forbidding the road from being formed in
their territory. Scannell met with the objectors, who explained that they would not
67
Booth to Lewis, 14 January 1882, MA-WANG 1 12, ANZ Wellington.
Lewis to Booth, 20 January 1882, on Booth to Lewis, 14 January 1882, MA-WANG 1 12, ANZ
Wellington.
69
Lewis to Booth, 21 January 1882, MA-WANG 1 12, ANZ Wellington.
68
47
withdraw their opposition unless they were paid £2 per chain for the land over which the
road was to be formed. Scannell let the matter rest at this time because winter was about to
bring work to an end. However, he unequivocally advised the Poutu Maori that ‘the work
would be gone on with’. Opposition to the road was finally withdrawn in January 1885,
when a party of Armed Constabulary arrived to carry out blasting work. The Poutu Maori
believed that the party had been sent on account of their opposition. It is unclear whether
they were paid compensation for the road. In his report for 1885, Scannell also detailed that
another road was to be formed, which would connect the Taupo–Murimotu road with the
proposed railway at Waimarino. He commented that the Maori ‘generally are anxious to
have the roads made, only a comparatively small section holding aloof’. Scannell
identified, with regret, that the influential Upper Whanganui chief Topia Turoa was among
those who opposed the roads.
The aggressive attitude towards Maori land that is evident in the 1882 Act was continued
for much of the 1880s and 1890s, although some of the harshest measures were modified.
Maori resistance to the imposition of such provisions was often met with shows of force
such as having Armed Constabulary or police guard public works projects on Maori land.
At the same time, Maori efforts to participate in the process of public works decision
making were largely ignored or rebuffed. Public works provisions generally reflected the
overall pattern of the time, responding to settler interests and demands, but showing little
regard for issues of concern to Maori such as protection of waahi tapu, eel weirs, and
fishing grounds.
1.6.6 Public Works Amendment Act 1887
As usual there were numerous amendments to the Public Works Act 1882. The Russian
scare of the 1880s caused defence works to become included within the definition of public
works.71 Provisions for taking land for railways also continued to be extended. Some of the
later amendments moderated the more vindictive provisions of the 1882 Act for Maori land.
70
71
Scannell to Under-Secretary, Native Department, 14 April 1885, AJHR, 1885, G-2, pp 12-13.
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, p 111.
48
The Public Works Acts Amendment Act 1887 appears to have been particularly important
in this respect.72
Section 13 of the 1887 Amendment Act repealed and replaced sections 23 to 25 of the 1882
Act regarding the taking of native land. For any public work other than a railway, where
Maori land required was held by title derived from the Crown, takings were to be made
under Part II of the 1882 Act (s 13(2)). This restored some of the protections, even if
eurocentric, for takings of Maori land where title was derived from the Crown. Presumably
it also restored the ability of local authorities to take such land under the more protective
Part II procedures. The harsh provisions for Maori customary land apparently remained.
The 1887 amendment also made all takings of Maori land, whether customary or Crowngranted, subject to the Native Land Court for determination of compensation. However, it
was again up to the Minister to apply to the Court to determine owners entitled and the
compensation award (s 14).
For railways land, the Governor in Council could proclaim, by Order in Council, the
construction of a work through such land, by whatever title it was held. This had to be
gazetted within two months and then any lands required could be taken and necessary
surveys and levels made without notifying or seeking the permission of the owners or
occupiers (s 13(1)). The taking procedures for all Maori land required for railways whether
title was customary or held by Crown-derived title were to be under Part VI of the 1882
Act.
1.6.6 Public Works Act 1894
The Public Works Act 1894 was described in parliamentary debates as being mainly a
consolidation of previous legislation.73 As noted previously, the 1894 Act was poorly
drafted, no doubt causing considerable confusion for taking authorities. The Act appears to
have continued the pattern of excluding ‘native land’ from the ordinary procedures and
protections of the main Act, although the definition of native land was not entirely clear. It
72
Ibid, pp 111-112.
49
was defined in the Act as land held by Natives under their customs and usages whether the
ownership had been determined by the Native Land Court or not. It is unclear whether this
distinguished between customary land and Crown-granted Maori land. Part II of the 1894
Act set out the general procedures for taking lands, noting that ‘native land’ (and land for
railway or defence purposes) was generally excluded from Part II. Where any land was
required for railway or defence works, separate (generally less protective) taking
procedures again applied.
Part IV of the 1894 Act seems to have continued the pattern of separate provisions for
Maori or ‘native’ land. This was defined in section 87 as ‘native land’ (presumably
customary Maori land) and any land owned by Natives under title derived from the Crown
(presumably Crown-granted Maori land). However, section 88, which provided for the
taking of such land, distinguished between taking procedures for native land where title was
not derived from the Crown (s 88(1)) and where title was derived from the Crown (s 88(2)).
In general, for land not derived from Crown title (customary land), the taking procedures
were very brief. The taking authority (now local or central government) simply required a
certified map and one month gazette notice before the land could be proclaimed taken by
Order in Council. There was no provision for normal protections for certain types of land,
such as gardens, or for objections. Also, there was no requirement for statutory declarations
that stated that all legal provisions had been complied with, and that sufficient
compensation was available. Further, there was no provision for taking by purchase or
agreement, rather than compulsion, or for offer back of surplus land.
Where title for Maori land was derived from the Crown, section 88(2) provided that such
land ‘may’ be taken under Part II (the general taking provisions for local and central
government taking authorities). These provided for some protections for land takings
similar to previous legislation. Under section 14, the consent of owners was required before
any stone or bricks or similar material could be taken from any place where such items
were generally sold. The consent of the owner or the Governor in Council was also required
73
Ibid, pp 112-114.
50
before the taking of any land occupied by a building, yard, garden, orchard, vineyard,
ornamental park, or pleasure ground. As noted earlier, the Part II provisions also continued
the stricter requirements for local authority taking procedures.
The general taking procedures were similar to those that had applied previously. These
required a survey and plan showing the lands to be taken, and the names of owners and
occupiers as far as could be ascertained. The plan was to be deposited in some convenient
place and open to inspection by all persons at reasonable hours. A gazette notice, to be
published twice, was to state where the plan was open for inspection, with a general
description of the proposed works and the lands required. A copy of the notice and
description of lands and works was also to be served on the owners and occupiers and any
other person having an interest in the land as far as could be ascertained. Any written ‘wellgrounded’ objections received within the required time (forty days) were to be heard before
the central government agency or local authority that was carrying out the taking. If there
were no objections, or the taking authority decided to proceed after consideration of
objections, and providing that compensation was available, the taking could then be made
in the prescribed manner. This required an accurate, certified map to be presented to the
Governor by the taking authority. A local authority, as before, also had to provide a
memorial and statutory declaration. The Governor was then able to issue the proclamation.
Other relevant sections in Part II included section 26, which provided for taking by
agreement or purchase rather than compulsion, and section 29, which outlined offer back
provisions for the disposal of surplus land. Presumably, none of these Part II protections
were available for Maori customary land as this was only covered by Part IV provisions.
In terms of compensation, the 1894 Act provided that all types of Maori land were subject
to different compensation provisions than for other land. Part IV of the 1894 Act provided
that, for a central government work, the Minister ‘may’ at any time apply to the Native
Land Court for compensation to be determined. In the case of local takings, the local
authority was to make an application to the Court ‘not later than six months’ after the date
of the first Order in Council or proclamation taking the land. The Native Land Court was to
determine the amount of the compensation award and the owners to which it was to be
51
paid. This meant that the responsibility for applying for compensation lay with the taking
authority, rather than the owners, as was normally the case. Presumably, customary owners
would also have to have their land taken before the Court (and therefore investigated and
the customary status lost) if they wanted compensation to be awarded.
Sections 91 to 94 in Part IV of the 1894 Act continued the five percent rule for Maori land
for roads for which compensation was not payable. Section 95 also provided that where
roads were laid off along boundaries between Maori and European lands, the land was to be
taken equally from both ‘where practicable’. This was apparently an attempt to stop abuses
by local authorities, which had been the subject of complaints in Parliament. Although Part
IV of the 1894 Act dealt specifically with takings of Maori land, other more general
sections also impacted on Maori land. For example, section 98 in Part V provided that
surveyors obtain the consent of the Governor in Council before entering any Maori
cultivation to take a road. A Maori cultivation was defined as meaning any land used
regularly by Maori for the growth of food crops for their own consumption. Section 100 in
Part VI on roads and rivers appeared to continue the provision originally made in 1876 that
provided that land over which a road was or had been in use by the public, and on which
public funds had been expended, was to be registered and considered a legal road.
1.6.7 Public Works Legislation after 1894
In terms of general public works provisions, the government continued the established
pattern of making amendments to the main 1894 Act as well as introducing later public
works Acts. For instance, the Public Works Act 1903 further expanded the definition of
public works to enable land to be taken for road frontages, forest plantations, recreation
grounds, and scenery preservation. As discussed in Chapter 2, provisions enabling land to
be taken for scenic purposes impacted significantly upon Maori landowners in the
Whanganui Inquiry District. The definition of defence purposes was extended, and public
works could also include those works for which money was appropriated by Parliament.
The later Public Works Acts 1905 and 1908 were largely consolidations of these measures.
52
By 1909 there was considerable confusion over what was meant by Maori or ‘native’ land
in all the various provisions applying to Maori land.74 There was also a great deal of
uncertainty over the point at which customary title could be held to have been extinguished
for the purposes of the various provisions. This was exacerbated by often differing
definitions in the various Land Acts and Public Works Acts. The problem was reflected in
various Court findings. In 1909, for example, the Supreme Court found that the definition
of ‘native land’ in the Public Works Act 1894 was ‘insensible’. This opened the possibility
that Maori lands may have been incorrectly taken between 1894 and 1909. However, the
government retrospectively validated all these takings with an Order in Council, while the
Public Works Act 1909 attempted to further tidy up the definition of native land.
The Public Works Amendment Act 1909 also extended compensation for takings of land
vested in a Maori Land Board or body corporate.75 Only those owners registered under the
Land Transfer Act were required to be given notice of a taking, otherwise a Kahiti notice
was considered sufficient. At the same time, failure to provide required notice would not
invalidate a taking. The Native Land Act 1909 also repealed the old requirement for
ministerial consent before a surveyor entered Maori-owned cultivations. There were
numerous further amendments to public works provisions between 1909 and 1928. For
example, a 1910 amendment removed any right of reassessment when compensation was
determined by the Native Land Court.
1.6.8 Public Works Provisions in Other Legislation
As well as the major developments within general public works provisions outlined, the
period from the 1870s to 1928 also saw a pattern emerge whereby the government passed
special legislation for particular works projects or types of works, providing additional
taking powers.76 For example, special legislation was passed for electricity (from 1884),
mining (from 1886), and hydro power (from 1903). Another practice that was established
during the period from the 1870s to 1928 was that of including taking powers in the
74
Ibid, pp 114-115.
Ibid, p 115.
76
Ibid, pp 116-124.
75
53
Finance Acts that provided funds for public works. As noted previously, numerous
Railways Acts also enabled land takings for various railways purposes and railways takings
generally contained lesser protections for all land. Attempts to encourage tourism and
provide for scenery and recreation also resulted in a number of important separate
legislative developments affecting Maori land. These included the Tongariro National Park
Act 1894 and the Scenery Preservation Act 1903 and amendments. Many of these special
Acts provided only enabling powers, which relied on the taking procedures set out in the
main public works legislation.
1.6.9 Issues in Whanganui Case Studies from the 1880s to 1928
Several of the case studies in this report concern takings of Maori land that were carried out
between the 1880s and 1928: Chapter 2 examines the acquisition of land for scenic reserves
along the Main Trunk railway in 1910, 1911, and 1912; Chapter 5 discusses the acquisition
of land for the railway itself; Chapter 7 concerns takings for government and municipal
building sites in Taumarunui in 1911, 1915, and 1917, Chapter 8 discusses the taking of
land for the site of Taumarunui Hospital in 1917; Chapter 9 concerns takings for roading
purposes in 1890, 1902, and 1922; and Chapter 14 examines the taking of land for water
supply purposes at Kai Iwi in 1904. The acquisition of Koroniti school site in 1899, which
is examined in Chapter 4, does not concern a taking under public works legislation, but
provides an example of how a central government agency transferred gifted Maori land into
Crown ownership. The case studies reflect the major public works requirements in the
Whanganui Inquiry District during the period from the 1880s to 1928. Land was required
for transport infrastructure, and also for amenities associated with growing townships,
including government and municipal buildings, hospitals, and water supply services. The
case study that examines the scenic reserves of the Main Trunk railway shows a growing
interest in scenery preservation and the associated economic benefits from tourism.
The case studies reflect upon a number of issues relating to the taking of Maori land for
public works during the period from the 1880s to 1928. A significant trend during this time
was a shift from negotiating with Maori owners for land required for public works to a
54
reliance on the compulsory taking provisions of public works legislation. (Though there
was no provision for customary Maori land to be acquired by negotiated purchase, this
option was theoretically available for Crown-granted Maori land.) Except for the
negotiations undertaken between 1883 and 1885 with regard to the North Island Main
Trunk railway, none of the other case studies from the period between the 1880s and 1928
show any evidence of negotiation and consultation with Maori owners. The move away
from consultation reflected diminished government concern for the interests of Whanganui
Maori, who became increasingly marginalised as European settlement objectives were
fulfilled.
That consultation was generally seen to be unimportant is reflected in the fact that public
works legislation did not include provisions that enabled taking authorities to overcome the
difficulties of negotiating for the acquisition of multiply owned Maori land. Taking
authorities lacked an easy means of identifying owners and appointing individuals with
whom a binding agreement could be reached on behalf of all owners. In these
circumstances, taking authorities turned to the compulsory taking provisions, which
circumvented all difficulties associated with multiple ownership, and also any legal
problems associated with succession and uncertain titles.
In the Whanganui Inquiry District, as in other areas, the shift to compulsory acquisition
occurred even though Maori land holdings were steadily declining, which meant that
remaining lands were of particular importance to Maori owners. Land was taken without
negotiation even when there were circumstances that made consultation seem especially
warranted. For example, negotiations were not undertaken when particularly large areas of
land were taken for the scenic reserves of the Main Trunk railway, or when land that had
been specifically reserved for Maori use and occupation was taken from Block XIVA of
Taumarunui Native Township.
The case studies also show that, as part of the move away from securing land by
negotiation, there was increased emphasis on the acquisition of full title rather than simply
use rights, which had been the focus of early efforts to consult with Maori. Taking
55
authorities do not appear to have considered alternative options such as lease agreements or
land exchanges. In some instances, such options would have clearly been more suitable
than the acquisition of full title. For example, leasing might have been appropriate in the
case of the areas required from Block XIVA of Taumarunui Native Township. As well as
enabling the owners to retain ownership of this land, leasing would have provided an
ongoing income that would have been consistent with the intention that the land be of
permanent benefit to the owners.
The acquisition of full title was pursued even in cases where Maori voluntarily provided
land for works that were exclusively for the benefit of the local Maori community. For
example, as explained in Chapter 4, the Crown acquired ownership of the land that was
gifted for the site of Koroniti Native School. The land was not taken under public work
legislation, but was instead treated as if it had been purchased, with the Native Land Court
making an order in favour of the Crown. In the 1970s, this undermined the ability of the
former Maori owners to control the return of land when it was no longer required. The
move away from consultation and the associated focus on acquiring full title both limited
any possibility of central government agencies and local authorities establishing continuing
cooperative relationships with Maori whose lands were required for public works purposes.
Except for the case studies that concern the Koroniti school site and the takings for road
and railway purposes, the case studies from the period between the 1880s to 1928 appear to
have all involved takings carried out under the Part II provisions of the relevant Public
Works Act. The Part II provisions, which applied to Crown-granted Maori land and general
land, contained more protections than the provisions that applied to customary Maori land.
However, as discussed earlier, the protections contained in the Part II provisions were
somewhat eurocentric. With regard to notification, the Part II taking procedure did not
require that notice of a proposed taking had to be served on owners. Instead, notice was to
be served only to the extent that owners could be ascertained. Where notice was not served,
owners would only be alerted to a proposed taking if it was brought to their attention by the
required Gazette notice. In the case of multiply owned Maori land, taking authorities would
have no doubt encountered difficulties when determining and locating owners. As a result,
56
it seems that Maori owners would have sometimes been unaware of proposed takings, a
situation that limited opportunities for objection and that also may have encouraged taking
authorities to believe that Maori land was relatively easy to acquire.
The case studies from the period between the 1880s and 1928 indicate that notice was
generally served on owners when Maori land within the Whanganui Inquiry District was
acquired under the Part II taking procedure. This is evident from the case studies that are
based on substantial file evidence, where a complete description of the taking process is
provided. In February 1912, for example, the Under-Secretary of Public Works instructed
that notice was to be served on the owners of the land required for Waimarino scenic
reserve. A subsequent objection from the owners suggests that notice was served in
accordance with the Under-Secretary’s wishes. Where land was vested in a Land Board,
notice was served on the Board as the owners’ representative. This was the case when in
April 1915 notice was served on the Waikato-Maniapoto District Maori Land Board with
regard to the intention to take land from Block XIVA of Taumarunui Native Township. It is
notable that in both of these cases notice was served somewhat later than the date of
Gazette publication, limiting the time available for making objections.
The case studies also indicate that, in addition to the serving of formal notice, owners were
also sometimes informally advised of the intention to take land, possibly when their land
was being surveyed. This is evident in the case studies that concern the 1915 taking from
Block XIVA and the 1917 taking for the site of Taumarunui Hospital. In these cases, the
owners wrote letters of objection before notice of the intention to take had been published
in the Gazette. In spite of the evidence presented in the case studies, it is likely that taking
authorities sometimes failed to serve notice on Maori owners within the Whanganui Inquiry
District. A failure to serve notice might partly explain why owners were sometimes not
present or represented when compensation for taken land was determined by the Native
Land Court.
The case studies suggest that it was not uncommon for Maori owners to object to takings
carried out under the Part II taking procedure. Objections by owners are detailed in the
57
three case studies that are based on substantial file evidence: the 1912 taking for Waimarino
scenic reserve, the 1915 taking from Block XIVA of Taumarunui Native Township, and the
1917 taking for the site of Taumarunui Hospital. Though these objections were treated
equally, the objection by the Waimarino owners was the only one that was made in
accordance with the formal objection process set out in the Part II procedures. The
objections that concerned Block XIVA and the hospital site were incorrectly addressed, a
procedural error that might reflect the fact that the objections were made prior to
notification, which detailed how and to whom objections were to be made. However, it
might also reflect that the owners lacked confidence that the hearing authority, especially in
the case of local authorities, would be sympathetic to their objections. The objection
concerning the hospital site should have been made to the chairman of the Taumarunui
Hospital and Charitable Aid Board, but was instead addressed to the Minister of Public
Works. It is notable that the objections concerning both the hospital site and Block XIVA
were sent to Maui Pomare, MHR.
The response to the three objections that are discussed in the case studies show that the
objection process failed to provide Maori owners with a means of influencing taking
authorities. The three objections were dismissed without any real attempt being made to
consult with the owners and to examine their concerns. The taking authorities showed little
interest in the opposition expressed by owners even though there seemed to be reasonable
grounds for objection. For example, in the Waimarino scenic reserve case, the owners
pointed out that they had already lost substantial areas of land to other takings. In the
hospital site case, the owners’ objection was dismissed even though it was recognised that
the area proposed for taking was excessive. It seems likely that objections were considered
to be ‘well grounded’ only if they identified that the statutory procedures for taking had not
been correctly followed.
The case studies raise a number of issues concerning the provisions for assessing
compensation for Maori land taken during the period between the 1880s and 1928. By
1887, the Native Land Court was required to determine compensation for all Maori land
that was taken and to establish to whom it should be paid. As shown in the case study
58
concerning Rangiwaea scenic reserve, it seems that compensation was sometimes assessed
without owner representation at the Court hearing. There are a number of factors that
explain this situation. As noted previously, the applications for determining compensation
had to be made by the taking authorities, rather than the owners, which meant that Maori
owners might not have been aware of hearings. Compensation was also sometimes
determined before title was investigated, meaning that whoever were found to be the
owners could not effectively challenge the award. The absence of owner representation also
reflects the fact that compensation was determined in a way that did not adequately
recognise the communal nature of most Maori land holdings. As a result of multiple
ownership, the compensation that was awarded to Maori owners was often divided into
small individual payments of negligible value. The expense of attending a hearing and
contesting an award was therefore often likely to be greater than any individual payment.
This meant that, if attempts to contest the award were to be worthwhile, owners had to
arrange for collective representation, which may have been difficult, particularly when
owners lived in different places.
In cases where owners were not represented, it seems that the Court’s award was usually
based on the taking authority’s offer, which was almost always the government valuation of
the taken land. This can be seen, for example, in the compensation assessment that was
made for Rangiwaea scenic reserve. In cases such as this, compensation awards were
generally low, something that probably encouraged taking authorities to believe that Maori
land was relatively inexpensive to take. It should be noted, however, that the Court
sometimes demonstrated a protective function when owners were not represented at
compensation hearings. For example, at the compensation hearing for the 1915 taking from
Block XIVA, where the owners were not represented, the Court adjourned the case to check
the valuations upon which the Public Works Department’s offer was made.
It is clear that the compensation awards were likely to be greater if the owners were
represented at the Court hearing. This is apparent from the evidence concerning the
compensation hearings for Waimarino scenic reserve, Taumarunui Hospital site, and the
1917 taking from Block XIVA. In these cases, after hearing a large amount of evidence
59
from a number of witnesses, the Court made awards that were considerably greater than the
offers put forward by the taking authorities. It is again notable that the Court sought to
protect the interests of owners, deciding in their favour even though the evidence was
conflicting. In the hospital site case, the Court explicitly stated that the owners deserved the
‘benefit of the doubt’ because they had been ‘expropriated’. It is clear that the Court’s
compensation assessments were not always made with confidence, indicating that it did not
possess the appropriate expertise to accurately determine the value of taken lands. In the
cases where the owners contested the compensation awards, the Court commented that it
was difficult to assess compensation owing to the complex and conflicting nature of the
evidence.
The case studies do not reflect significantly on issues concerning the disposal of surplus
land during the period up to 1928. As noted earlier, it seems that Maori generally expected
land to be returned if it was no longer used for the purpose taken. This was especially so
given the way in which compulsory takings appeared to so directly undermine the
protections for Maori land guaranteed in the Treaty. Public works provisions had the
capacity to partially meet this expectation. As noted previously, one of the traditional
protections in public works provisions was the offer back of surplus land to the original
owners or neighbouring owners. Though this tradition was capable of modification to take
account of Maori expectations, it tended to be undermined for many years by the strong
development objectives of public works legislation. For example, provisions were
increasingly modified to provide offer back only if surplus land was not required for other
public works purposes. In a new colony there also tended to be less recognition of
‘sentimental’ attachments to land and therefore less emphasis on the necessity for offer
back. The settler view that Maori land was generally an inferior title that should be
extinguished as rapidly as possible may also have worked against revestings or offer back
of land to Maori ownership.
It often seems that in the period up to 1928 almost any alternative public purpose was
considered preferable to returning land to Maori ownership. In many cases it was legal for a
taking authority to use land acquired under compulsory provisions for other purposes.
60
However, there appears to have been a failure by government to require that taking
authorities consider whether such alternative uses were more pressing than returning land
when compulsory provisions had been used. It also seems that in cases where compulsory
provisions were employed, and little or no compensation paid, such as under the five
percent rule, more serious consideration of offer back should have been required before
land was used for other purposes. The disposal of surplus land taken for public works
became a more significant issue in the later twentieth century and will therefore be
considered in more detail in the following section.
1.7 General Public Works Takings of Maori Land (Central and Local Government),
1928-2000
The Public Works Act 1928 was the principal Public Works Act of the twentieth century. It
remained in place for over fifty years, though a number of amendments were passed. The
1928 Act was repealed by the Public Works Act 1981, which continues to apply today –
with amendments. This slowing in new legislation perhaps reflects the end of the major
development phase that had begun in the 1870s. Nevertheless, a familiar pattern was
evident throughout the twentieth century, whereby numerous amendments were made to the
main Act and the definition of public works was extended for new purposes.
By 1928, the proportion of New Zealand’s land area that remained in Maori ownership was
very small. About ten percent of the total area was held as Maori freehold land, while
remaining Maori customary land was negligible. In the Whanganui Inquiry District, it has
been estimated that in 1930 Maori retained about 20% of their original land holdings.77
Public works takings therefore represented a relatively significant encroachment on
remaining Maori land, even when relatively small areas of land were involved. It is
therefore not surprising that Maori communities generally expressed resentment at both the
continued lack of legislative concern for protecting remaining areas of Maori land from
77
Innes, Craig, and Mitchell, James, ‘Whanganui Land Alienation Quantitative Study: 1840-2000’, a report
commissioned by the Waitangi Tribunal, (draft) 2004. Details supplied by authors.
61
public works requirements, and the continuing provisions that provided generally lesser
protections for Maori than general land.
It seems that by the early years of the twentieth century both central and local government
taking authorities had developed the perception that Maori land was generally easier and
cheaper to take than other types of land. The taking of such land was also commonly
regarded as a ‘solution’ to problems associated with Maori land held in multiple ownership,
such as failure to pay rates, poor economic utilisation, and weed infestation. The
government failure to require Pakeha dominated local authorities to properly consult with
Maori also meant that local authorities seem to have found it easier to take from unknown
Maori than members of their own communities. From 1909, the government had developed
a system of consultation for the purchase of Maori land that involved meetings of
assembled owners, but failed to make this system a requirement for consultation in terms of
public works takings.
1.7.1 Public Works Act 1928 and Amendments
At the time of its passage, the 1928 Act was described as being largely a consolidation of
previous provisions.78 As such, it continued many of the same principles and patterns of the
previous century, including separate provisions for taking Maori land. As with earlier Acts,
Part II of the 1928 Act generally covered taking powers and procedures.79 It continued to
follow the pattern of requiring a survey and plan of the land, notice of the proposed taking,
and the opportunity for ‘well grounded’ objections to be made and heard. The Act also had
similar protections for land occupied by any building, yard, garden, orchard, vineyard,
ornamental park or pleasure ground, or for brick works or other commercial activity (s 18).
(A 1948 amendment added to this list land that was occupied by a cemetery or burial
ground.) The 1928 Act also included provision for taking by agreement and purchase, and
continued provisions for the disposal of surplus land.
78
79
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, p 133.
Ibid, pp 136-139.
62
Part IV of the 1928 Act dealt separately with Maori land.80 In general, where title was not
derived from the Crown (customary land), a certified map was required and then an Order
in Council could declare the land to be taken; where title was derived from the Crown
(Maori freehold land) the taking was to be under the general provisions of Part II of the
Act. Special procedures were continued for Maori land required for defence and railways
purposes. Although the general five percent rule for taking Maori land for roads and rail
had been abolished in 1927, a right to take Maori land for roads where these were in public
use and public money had been expended on them (as provided in earlier public works
legislation) was continued in section 484 of the Native Land Act 1931.
The separate provisions for Maori land in the 1928 Act continued to provide considerably
lesser protections for remaining areas of Maori customary land. For example, while the
protections under section 18 appear to have been applicable to Crown-granted Maori land,
customary land continued to be excluded from these provisions. The provisions for an
alternative to compulsory taking through negotiated purchase also presumably applied only
to Crown-granted Maori land and not to customary Maori land. This was changed by a
1962 amendment, by which time almost no customary Maori land remained. The tradition
of separate provisions for Maori land was finally abolished with the passage of the Maori
Purposes Act 1974.
Although the taking of Crown-granted Maori land was to be carried out under Part II of the
1928 Act, there were still some important differences. Where such land was not registered
under the relevant Land Transfer Act the requirement to list names and give notice to each
owner did not apply. Instead, a notice had to be placed in the Kahiti but no taking was
invalidated if this was not done. A 1931 amendment provided that a gazette notice was
sufficient. Later still, a Maori Land Court panui was considered sufficient and the gazette
notice requirement was dropped altogether. The result was that Maori land generally
received less adequate notice, which meant that owners were less likely to make objections
than owners of general land, who continued to be individually notified. This situation may
80
Ibid, pp 139-140.
63
well have encouraged taking authorities to view Maori land as being easier and cheaper to
take than general land.
Taking authorities clearly believed that the compulsory taking provisions were the most
convenient means of acquiring Maori land. This was partly due to the fact that multiple
ownership meant that attempts at acquiring Maori land by negotiated purchase were often
unsuccessful. This is illustrated by the failed purchase negotiations that preceded the
compulsory taking of defence lands at Waiouru in 1961, which are discussed in Chapter 4.
It was not until the passage of the Maori Affairs Amendment Act 1974 that taking
authorities were provided with a means of overcoming the difficulties of negotiating for
land held in multiple ownership. Under Part IX of the 1974 Amendment Act, notice could
be served on the registrar of the Maori Land Court, who was to summon a meeting of
owners, or in cases of urgency, appoint trustees to negotiate on behalf of owners.
Section 103 of the 1928 Act dealt with separate compensation provisions for Maori
owners.81 This continued the well-established tradition of the Maori Land Court
determining all compensation for all kinds of Maori land. It also continued the requirement
that compensation was to be assessed after an application made by the taking authority. In
the case of a government work, the application was to be made by the Minister ‘any time’
after the taking, while a local authority had to apply to the Court within six months. The
Maori Land Court could decide, as it saw fit, on the amount of the compensation award and
to whom it was paid. The Court could also hear any application for determination of
compensation, even when notice of such a sitting had not been gazetted. Under section 48,
the Native Trustee could also make a claim on behalf of the owners for compensation for
lands taken out of any Maori reserve.
The compensation provisions for Maori land in the 1928 Act continued to offer less
protection than for general land. The Maori Land Court generally had less expertise in
public works matters than the Compensation Court. In most cases the taking authority
rather than the owners also continued to be responsible for claiming compensation. There
81
Ibid, pp 140-145.
64
was also no time limit for central government to make compensation claims. The Maori
Land Court generally had full authority in determining compensation and its decision was
final, although the 1928 Act allowed appeals to be made to the Native Appellate Court.
Cases could not be referred to the Compensation Court even though it had greater expertise
in these matters. The separate provisions for compensation for Maori land were not
repealed until 1962, when all compensation claims were removed to the Land Valuation
Court.
There were numerous amendments to the 1928 Act that extended definitions of what
constituted a public work, as well as special works for which lesser protections generally
applied.82 There were also special Acts for various purposes, which included the taking
procedures provided in the main Act. The familiar pattern of widening the scope and
powers for public works takings continued. For example, amendments provided for
aerodromes in the 1930s, and motorways from the 1950s. In other cases, legislative
measures extended the circumstances under which Maori land could be taken. For example,
the Housing Improvement Act 1945 provided for local authorities to take land where
housing was substandard. (Maori concern about the expansion of powers in this regard led
to a later amendment in section 5 of the Housing Act 1955, which provided that no Maori
land could be taken for State housing purposes without the consent of the Minister of Maori
Affairs.83) Under the Noxious Weeds Act 1950, local authorities were able to take and
dispose of land to control noxious weeds. The Water and Soil Conservation Act 1967 also
provided for land takings. Some measures also provided for taking land ‘as for’ a public
work for non-government agencies. For instance, the Resource Management Act 1991
enabled network utility operators (as defined in the Act) to have taking powers for
particular purposes.84
The 1928 Act also continued the long tradition of generally offering back surplus land that
was no longer required – first to those entitled to the land from which it was originally
82
Ibid, pp 134-135.
Russell Davies, ‘History of Public Works Acts in New Zealand’, LINZ, 2000, p 32.
84
Ibid, pp 74-75.
83
65
taken, and then to owners of adjoining lands (s 35).85 However, before offer back steps
were taken, the Governor could make such land available for a school or declare it required
as Crown land. It appears that Crown-granted Maori land was included under these
provisions, but not Maori customary land. Later amendments were made to these
provisions to enable the Crown to dispose of surplus land for other purposes, such as a
1948 amendment providing for land to be set aside for reserves. A 1952 amendment also
enabled the Crown to change the purpose for which land was used from that for which it
was originally acquired.
Although Crown-granted Maori land was theoretically subject to offer back provisions it
appears that, as noted earlier, taking authorities for a long period were averse to returning
land to Maori. Actually revesting land in Maori ownership was also very difficult. The
provisions seemed to contemplate very little Maori land being returned at all which fitted
with the prevailing official view for most of the twentieth century that Maori land title
should eventually disappear altogether. In early years, most offer backs to Maori appear to
have required special Acts of Parliament, which presumably would have discouraged
authorities who may have been sympathetic to returning such land.
Many of these
revestings appear to have been made in ‘washing up’ Acts such as the Native Purposes
Acts.
The need for special acts for revesting individual areas of land was eventually removed
with the Native Purposes Act 1943.86 However, the right of return was considerably
qualified. Land would be revested in Maori owners through the Maori Land Court only if it
was no longer required for a work or ‘for any other public purpose’. Only the taking
authority could apply for such a revesting and the land could generally only be vested with
Crown-granted title. This provision was continued in section 436 of the Maori Affairs Act
1953, which applied to Maori land or general land owned by Maori that had at any time
been acquired by the Crown or local authority for a public work. The Maori Land Court
could also add such land to an existing title as an alternative to vesting. Section 436 of the
85
86
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, pp 145-146.
Ibid, pp 147-148.
66
1954 Act was replaced by section 134 of the Te Ture Whenua Act 1993, which also
provided for the vesting of such land and for the first time generally encouraged the
protection of remaining Maori title.
While the general provisions for revesting Maori land continued from the 1940s, it seems
that a 1954 amendment to the Public Works Act 1928 removed the offer back principle.87
(This amendment replaced and repealed section 35 of the 1928 Act.) The 1954 amendment
provided for surplus land to be auctioned by public tender, and though adjoining owners
were to be notified, they were not given priority to repurchase such land. The lack of regard
for original ownership in these developments became the subject of considerable
controversy. The offer back principle was eventually revived in the Public Works Act 1981.
In the 1960s and 1970s, public opinion generally became more critical of the extensive
powers and development mentality of public works taking authorities.88 The environmental
movement especially sought more controls over powers relating to public works, including
the provisions for land taking. There was also significant public concern about the loss of
offer back principles in the 1950s. Greater sympathy for Maori concerns becomes more
evident in official files, as does concern about the civil disruption caused or threatened by
the Maori protests of the 1970s. These protests, the most significant of which concerned
land at Bastion Point and the Raglan Golf Course, arose out of issues relating to early
public works takings and the failure to return land when it became surplus. In response, the
government began making some amendments to public works provisions to enhance
protections for Maori land. These included the amendments that were made in the 1970s,
which were noted earlier. From the 1970s, measures were also introduced in town planning
legislation to take more account of Maori interests and concerns.
1.7.2 Public Works Act 1981
87
88
Ibid, p 146.
Ibid, pp 148-149.
67
The Public Works Act 1981 contained some of the improvements for Maori land that had
been incrementally provided in the various amendments to the 1928 Act.89 There was no
longer a separate section for Maori land, and improvements to notification for proposed
takings of Maori land continued. The new Act included a greater emphasis on securing
agreements to purchase required land, rather than relying on compulsory takings. The 1981
Act provided that Maori land had to be acquired under the supervision of the Maori Land
Court.
The 1981 Act also introduced the short-lived requirement that land had to be defined as an
‘essential’ work before a taking could carried out compulsorily. This had implications for
Maori land, which had previously been taken for such purposes as works depots, stock
paddocks, rifle ranges and camping grounds. However, this principle was not specifically
intended to address Maori concerns and was abolished in 1987. The main criticism of the
proposal was that the definition of ‘essential’ could be widely extended, as had been the
case with the term ‘public work’.
The other major change in the 1981 Act was the reintroduction of the offer back principle
in sections 40, 41, and 42.90 When land is no longer required for the purpose for which it
was taken or for another public work, section 40 provides that it is to be offered back to the
original owner or successor. As discussed in Chapter 14, which examines contemporary
disposal practice, offer back does not apply in certain circumstances, such as if it is deemed
to be ‘impracticable’ or ‘unreasonable’. It was originally intended that land was to be
offered back at current market value, but a 1982 amendment provided that it could be
returned at a lesser price if the government or local authority found it reasonable. Section
41 dealt particularly with the return of taken Maori land that was no longer required. This
provided for a return either under section 40 or under section 436 of the Maori Affairs Act.
Section 134 of Te Ture Whenua Maori Act 1993 replaced section 436, providing more
flexibility in applications to revest taken Maori land that was no longer required. As
discussed later, issues concerning the offer back regime of the 1981 Act are examined in
89
90
Ibid, pp 149-150.
Ibid, p 150.
68
some of the case studies, which reveal that the provisions are somewhat inadequate for the
return of Maori land.
The offer back of surplus land taken for public works had become a major issue by the time
the 1981 Act was passed. It has continued to be a major contemporary public works issue
with Maori, particularly after the government restructuring and associated land sales that
commenced in the mid-1980s. This has resulted in a number of amendments to address
offer back issues that arose as a result of this restructuring. For instance, the New Zealand
Railways Corporation Restructuring Act 1990 provided disposal powers for railways land
that were equivalent to those of section 40.91 The State-Owned Enterprises Act 1986
addressed issues of how section 40 would apply in the case of these restructured entities.92
Similar legislation was passed for port companies in 1988, local authority trading
enterprises in 1989, Crown Research Institutes in 1992, education authorities in 1989, and
energy companies in 1992.93 These generally provided for section 40 rights, while allowing
general transfers of land to new organisations.
A number of general amendments have also been relevant to the offer back of taken Maori
land. For example, the Waikato Raupatu Claims Settlement Act 1995 provided for a
monetary repayment for a loss of right to repurchase. The Treaty of Waitangi (State
Enterprises) Act 1988 also provided that land to be returned to Maori under resumption
would not be subject to sections 40 and 41 of the Public Works Act 1981.
By 1981, there were also close links between public works and town planning.94 The 1981
Act assumed, for example, that planning processes would give adequate notice of proposed
public works and that good town planning would provide adequately for public works
needs. The Town Planning Act 1977 had, for the first time, required specific account to be
taken of Maori concerns in the planning process. Among matters that the Act defined to be
of national importance was the ‘relationship of the Maori people and their culture and
91
Davies, ‘History of Public Works Acts in New Zealand’, p 63.
Ibid p 64.
93
For more details, see Davies, pp 64-67.
94
Marr, ‘Public Works Takings of Maori Land: 1840-1981’, p 150.
92
69
traditions with their ancestral land’ (s 3(1)). The Act provided for cultural factors to be
taken into account in planning decisions. It also provided for Maori to be co-opted onto
planning committees where there were ‘significant’ Maori land holdings in a region. The
Act included planning requirements for marae, urupa, reserves, and pa.
Issues arose about the adequacy of these provisions because there was uncertainty among
planning authorities as to how much weight should be given to Maori concerns when
reaching a planning decision. The planning regime of the 1977 Act was replaced by a new
environmental management regime under the Resource Management Act 1991. As noted,
this Act also contains extended land taking powers for public purposes, while also requiring
account to be taken of Maori concerns and values as a matter of national importance.
Land Information New Zealand (LINZ) is presently managing a review of the Public
Works Act 1981. One of the key drivers for the review is noted as being to ‘ensure that
exercise of the 1981 Act powers, functions and duties is within a statutory framework that
accords with Treaty of Waitangi principles’.95 Consultation has been undertaken as part of
the review, but legislative changes have yet to be introduced.
1.8.3 Issues in Whangnaui Case Studies from 1928 to 2000
A number of the case studies concern takings and disposals from the period between 1928
and 2000: Chapter 3 examines the acquisition of large areas of land for defence purposes at
Waiouru in 1941 and 1961; Chapter 4 discusses the 1977 disposal of the land that had been
gifted for the site of Koroniti Native School; Chapter 6 concerns sizeable takings for
railway purposes from Maraekowhai block in 1932 and 1934, Chapter 7 examines the
taking of further land for government buildings in 1937 from Block XIVA of Taumarunui
Native Township; Chapter 9 includes a discussion of the taking of land for a section of the
Whanganui River Road in 1930; Chapter 10 examines the taking of a scoria pit at Ohakune
in 1968 and the subsequent return of this land in 1998; Chapter 11 examines the taking of
land for a gravel pit from Ohuta block in 1931 and the later disposal of this land in 1994;
70
Chapter 12 concerns the taking of a metal pit and quarry at Otukou in 1969; Chapter 13
includes an examination of takings for water supply purposes at Kai Iwi in 1969 and 1975;
and Chapter 14 discusses contemporary disposal practice. Two of these case studies
concern takings by local authorities: Ohuta gravel pit was taken by the Waimarino County
Council, while the Kai Iwi water supply takings were carried out by the Wanganui City
Council.
The case studies reflect the major public works requirements in the Whanganui Inquiry
District during the period from 1928 to 2000. In the early years of this period, land
continued to be required for road and railway purposes, though such takings appear to have
become less common. Land was also taken for the metal pits that were required for road
maintenance and construction. The 1937 taking from Block XIVA and the Kai Iwi water
supply takings show that urban amenities continued to be important. These takings also
show that Maori land owners were sometimes affected by multiple takings from the same
block. In terms of land area, the acquisition of land for military training grounds was the
most significant public works requirement in the Whanganui Inquiry District between 1928
and 2000. In 1941 and 1961, over 11,000 acres of Maori land was taken for the extension of
the Army’s training base at Waiouru. The acquisition of land for the Tongariro Power
Development Scheme was another important requirement – Otukou metal pit and quarry
was taken in connection with this scheme in 1969.
The case studies from the period between 1928 and 2000 show a continuance of trends that
were evident before the passage of the 1928 Act. Throughout much of the period, for
example, taking authorities continued to rely on legislative provisions for compulsory
acquisition rather than negotiating with Maori owners over public works requirements. This
approach was applied in the cases of the 1942 and 1961 Waiouru defence takings, the 1932
and 1934 Maraekowhai railway takings, the 1937 Block XIVA taking, the 1930 taking for
the Whanganui River Road, the 1931 taking of Ohuta gravel pit in, the 1969 taking of
Otukou metal pit and quarry, and the 1969 Kai Iwi water supply taking. All of these takings
95
LINZ, ‘Review of the Public Works Act: Issues and Options Public Discussion Paper’, LINZ, 2001, chapter
2.1.
71
show a continuing emphasis on acquiring full title rather than use rights. An agreement that
allowed for ongoing Maori ownership would have been particularly suitable in the case of
the Maraekowhai lands. These lands were not required for construction or any other active
use – they were taken to protect bush from being felled from slopes above the track and
thereby prevent slipping.
Of the case studies that concern compulsory takings in the period from 1928 to 2000,
notification was not required for either the defence or the railway takings. Provisions
relating to takings for these purposes contained less protections for owners because defence
and railway needs were perceived to be essential. Except for the 1937 taking from Block
XIVA, there is limited available file evidence for the other case studies that concern
compulsory acquisitions between 1928 and 2000. In the case of the 1937 taking from Block
XIVA, the Public Works Department individually notified the owners of the proposed
taking. As with the earlier case studies, this suggests that notice was generally served on
owners where possible.
The case studies also show that the formal objection process continued to provide Maori
owners with little real opportunity to effectively contest proposed takings. This is evident
from the response to objections made prior to the 1937 taking from Block XIVA and the
1961 Waiouru taking, which were dismissed without detailed examination of the owners’
concerns. It seems that an objection would only be considered ‘well-grounded’ if it
identified that the proposed taking did not comply with statutory requirements. Taking
authorities appear to have seen themselves to be largely unaccountable to owners. This
attitude, combined with a lack of concern for the interests of owners, seems to explain why
taking authorities sometimes acquired excessive areas of land. This appears to have been
the case in 1937, when land was taken from Block XIVA for a public works depot. Prior to
this taking, the Public Works Department had looked to acquire a considerably smaller area
for the same purpose from the Taumarunui Borough Council.
While taking authorities dismissed objections that did not focus on statutory requirements,
it is evident that they generally sought to comply with the protections that applied to land
72
occupied by buildings and other features. This is apparent in the 1937 taking from Block
XIVA, where the Public Works Department acquired vacant land, avoiding an area upon
which dwellings were situated. Similarly, when forming the Whanganui River Road, the
Department went to considerable efforts to accommodate the concerns of owners at
Hiruharama. The proposed course of the road was altered to avoid land occupied by
dwellings and a meeting house. Though taking authorities generally sought to comply with
provisions that protected land occupied by certain features, it is evident that they sometimes
failed to achieve this. The case study concerning Otukou quarry appears to be an example
of a taking that did not comply with statutory protections. According to claimant evidence,
the quarry site contained an urupa, which was blasted during the extraction of metal. Land
that contained a ‘burial ground’ or ‘cemetery’ was protected by section 14 of the Public
Works Amendment Act 1948, which provided that such land could not be taken without the
consent of either the owners or the Governor-General in Council.
The case studies show that, from about the middle of the twentieth century, central
government agencies increasingly sought to move away from compulsory acquisition and
instead negotiate with Maori landowners. This shift, which reflects greater concern for
Maori interests, can be identified, for example, in the consultation that was undertaken by
the Public Works Department in the early 1950s, when it sought to acquire further Maori
land for an extension of the military training grounds at Waiouru. After initially focussing
on an exchange of land, the Department sought to acquire the land by negotiated purchase.
However, this proved problematic because of the difficulty of negotiating and reaching an
agreement for land held in multiple ownership. In the end, the land was taken in 1961 under
the compulsory provisions of the 1928 Act, even though this was recognised to be
inconsistent with government policy. As noted earlier, it was not until the passage of the
Maori Affairs Amendment Act 1974 that legislative provision enabled taking authorities to
more easily negotiate for multiply owned Maori land.
Local authorities appear to have moved away from compulsory acquisition somewhat later
than central government agencies. This is evident in the case study that examines the
Wanganui City Council’s acquisition of land for water supply purposes at Kai Iwi in 1969
73
and 1975. While the 1969 acquisition was a compulsory taking under the 1928 Act, the area
secured by the Council in 1975 was acquired by negotiated purchase. The Council did not
employ the provisions of the 1974 amendment Act, but instead purchased the land after
presenting an offer to an assembled meeting of owners.
In terms of compensation issues, the case studies from the period between 1928 and 2000
primarily concern assessments made by the Native Land Court – the system that lasted until
1962. The case studies identify the same inadequacies that were evident in the period
before 1928. Almost all of the case studies show that owners were not represented at the
hearing, which meant that the Court typically relied on the offers made by the taking
authorities. In the case of the 1942 Waiouru defence taking, the Court failed to finalise an
assessment after it rejected the Public Works Department’s offer as being unreasonable.
The Department clearly wished to minimise the compensation that was paid to Maori
owners and often called witnesses to support its case. It was therefore important that
owners were represented at the hearing if they were to receive fair compensation. However,
it appears that owners were either unaware of the hearings or believed that their small
individual interests made representation seem unjustified. As original owners died during
the twentieth century, the appointment of successors inevitably saw the value of individual
shareholdings diminish.
Some of the case studies also reflect upon the assessment of compensation for Maori land
that was taken after 1962. It seems that the Ministry of Works continued attempting to
minimise compensation, which sometimes meant that agreements over compensation were
drawn out or never concluded. This was the case after the taking of Ohakune scoria pit in
1969. A compensation settlement was not reached at this time, and a payment was only
made in 1998, after the taking was revoked. In this case, the Ministry of Works failed to
reach an agreement with the Maori Trustee because it refused to pay royalties for metal that
had been extracted prior to the taking. Compensation for the 1969 Otukou metal pit taking
was not paid until 1974, suggesting that this case also may have involved prolonged
negotiations.
74
A number of the case studies from the period between 1928 and 2000 reflect upon disposal
issues. In the case of Ohuta gravel pit, the former owners were not offered back an area
occupied by a surfaceman’s cottage that was sold in 1961. As noted earlier, the right of
repurchase had been removed by the 1954 Amendment Act. The Koroniti school site case
study provides an example of gifted land that was not offered back after it became surplus
to requirements. Though it was standard practice for the Department of Lands and Survey
to return such land to the former owners, it failed to establish that the school site had been
gifted before proceeding with disposal.
Other case studies raise issues concerning the offer back regime of the 1981 Act. In the
case of Ohakune scoria pit, compliance with the offer back provision was difficult because
of the large number of former owners. Identifying the owners and successors posed a
problem that was beyond the resources of the disposing agency. In 1998, the taking was
finally revoked under section 54 of the 1981 Act. This provision, which was intended for
situations where land had been taken and then found not to be required, returned the scoria
pit to the Maori Trustee, who had been the registered owner at the time of taking. This
appears to have been a somewhat unsatisfactory conclusion to the disposal, as it did not
return the land to active Maori ownership. The disposal of Ohuta gravel pit in 1994 also
concerned a large number of former owners. However, the Ruapehu District Council
believed that it was complying with the offer back provision when it sold the land to an
individual who was a descendant of one of the former owners. This disposal raises the issue
of whether disposals handled by local authorities should be subject to central government
monitoring. The disposal of Otukou metal pit and quarry, which has not yet been finalised,
shows that decision-making concerning unwanted public works land is sometimes very
prolonged. It appears that material was last extracted from the metal pit and quarry in the
late 1970s.
Further disposal issues are examined in Chapter 14, which specifically discusses
contemporary disposal practice. It outlines the provisions of the 1981 Act and notes that
claimants have expressed frustration with the disposal process, believing that information
concerning surplus lands should be easier to access. Chapter 14 also notes the Waitangi
75
Tribunal’s findings in The Turangi Township Report, which identifies a number of
shortcomings in offer back provisions of the 1981 Act. The Tribunal notes, for example,
that there is no requirement for former Maori owners to be consulted when offer back is
deemed to be ‘impracticable’ or ‘unreasonable’. Chapter 14 also discusses the protection
mechanisms that have been introduced to safeguard Maori interests during the disposal of
Crown land, which apply in cases where a right of repurchase does not exist or is not
exercised. The provision of landbanks ensures the availability of land for Treaty settlement
purposes, while another process provides protection for lands of cultural importance. It is
noted that these protections were introduced after significant areas of Crown land had been
disposed of under the rationalisation policies that were introduced by the Labour
Government.
1.8 Conclusion
Many general trends concerning the acquisition of Maori land for public works purposes
are evident in the Whanganui Inquiry District. In the 1850s, the government largely
avoided having to deal with Whanganui Maori over public works matters because a
sizeable area of land had been purchased ahead of settlement needs. The 1848 purchase
block was the focus of early European activity in the district. As a result, public works
involving Maori land appears to have been limited to the formation of roads through some
of the purchase reserves and through coastal lands that bounded the purchase block. Aware
of the relative strength of Whanganui Maori, the government secured the consent of leaders
before undertaking works that affected Maori land. These negotiations do not seem to have
dealt with the issue of ownership and were instead focussed on the use of the required land.
Throughout the 1860s and 1870s the government continued to negotiate with Whanganui
Maori over public works requirements, which again appear to have been mostly limited to
roading projects. The Public Works Land Act 1864 - developed without input from Maori,
and the first specific legislative authority that enabled central government to take Crown
granted and customary Maori land – does not appear to have been applied in the
Whanganui Inquiry District. Enacted as a wartime measure, it seems likely that Whanganui
76
Maori would have seen its application as a form of raupatu. Local authorities also appear to
have consulted with Whanganui Maori during this time and did not immediately employ
the compulsory taking provisions that they acquired under the Public Works Act 1876.
When negotiating with Whanganui Maori, local authorities sought assistance from central
government.
From about 1880, there was a significant shift in the way Whanganui Maori land was
acquired for public works purposes. With Maori no longer dominant, less emphasis was
placed on negotiation. The government began to be more assertive when dealing with
Maori over public works requirements and also encouraged local authorities to act
independently in matters that concerned Maori land. Consultation with Maori owners
appears to have been last undertaken in connection with the significant area of land that
was required for the track of the North Island Main Trunk railway. In this case, the
government sought to negotiate with Whanganui and King Country Maori because it did
not wish to aggravate relations with iwi and, as a result, jeopardise settlement objectives.
The case studies indicate that by 1890 taking authorities no longer negotiated with
Whanganui Maori and instead relied on the compulsory taking provisions of public works
legislation. There were two types of compulsory taking. The first type, which was
established in the Native Lands Act 1865, enabled up to five percent of lands to be taken
for road and railway purposes without notification and compensation. It is evident that the
five percent rule was widely implemented in the Whanganui Inquiry District prior to its
abolition in 1927. Most significantly, the rule was applied to the land taken for the track of
the Main Trunk railway. The failure to pay compensation for this land was a breach of the
government’s agreement with Whanganui and King Country Maori, which had been
reached before work on the railway had begun.
The second type of compulsory taking – based on principles and legislation developed in
England – involved a procedure that required notification, the hearing of objections, the
issuing of a proclamation, and the payment of compensation. Takings for certain purposes
that were considered to be essential, most notably for defence and railways, did not require
77
notification or the hearing of objections. In the case of Maori land, compensation was
determined by the Maori Land Court until 1962, when all claims were removed to the Land
Valuation Court.
Most of the case studies concern this second type of compulsory taking, reflecting that it
was the principal means by which Maori land has been acquired for public works purposes
in the Whanganui Inquiry District. The case studies show that the notification and objection
procedures did not provide Maori owners with an effective means of engaging with taking
authorities. Though it appears that taking authorities generally sought to individually notify
Maori owners, objections to proposed takings were dismissed with little consideration of
the owners’ concerns. It seems that an objection would only be considered ‘well grounded’
if it identified a procedural error in the way that the taking was being executed. The fact
that taking authorities were unaccountable in their handling of objections may, in some
instances, have encouraged the taking of larger areas of land than were required. While
local authority takings were monitored by the Public Works Department and its successor,
the Ministry of Works, it is apparent that local authorities were able to exert considerable
pressure on the central government agency.
The case studies also show that there were inadequacies in the system of assessing
compensation in the Maori Land Court. Owners were often not present or represented at
hearings, which saw the Court rely largely on the sum offered by the taking authority. As
responsibility for applying for an assessment lay with the taking authority, it seems that
owners were sometimes unaware of compensation hearings. The absence of owner
representation also appears to reflect the fact that the method of determining compensation
did not adequately recognise the communal nature of most Maori land holdings. As the
expense of attending a hearing and contesting an award was likely to be greater than any
individual payment, the only option open to owners was collective representation, which
may have been difficult to organise, particularly when owners lived in different places. The
case studies show that there was often significant delays in determining compensation, and
there is one example where an assessment was never finalised and no compensation paid.
78
From about 1950, central government agencies sought to rely less on compulsory taking
provisions when acquiring Maori land for public works purposes. Instead, they increasingly
attempted to acquire Maori land by negotiated purchase, a shift that reflected greater
concern for Maori interests. The case study that deals with the Waiouru defence takings
shows that this approach was applied when the Army Department looked to acquire further
land in the 1950s. Efforts to secure this land by negotiation were unsuccessful, primarily
because of the difficulty of reaching an agreement for land held in multiple ownership. It
was not until the passage of the Maori Affairs Amendment Act 1974 that legislative
provision enabled taking authorities to more easily negotiate with Maori owners. It seems
that central government agencies continued with compulsory takings for much of this time.
This is shown in the case study of Otukou metal pit and quarry, which were taken in 1969.
Local authorities also began to move towards acquiring Whanganui Maori land by
negotiation and agreement, as evident in the case study of the Wanganui City Council’s
acquisition of land at Kai Iwi in 1975 for water supply purposes.
Some of the case studies reflect upon the procedures that are currently followed during the
disposal of lands that are no longer required for public works purposes. It is evident that, in
the case of lands taken from Maori, both central government agencies and local authorities
have sometimes struggled to comply with the offer back regime of the Public Works Act
1981, which provides former owners with a right of repurchase. Claimants have expressed
frustration at the drawn out nature of the disposal process, and also the lack of information
that is available while it is being carried out. It is apparent that mechanisms developed in
the mid 1990s to protect Maori interests during the disposal of Crown land were
implemented after significant areas of land had been disposed of under the policies
introduced by the Fourth Labour Government.
79
o
Kawautahi
LRoioaira
road
... Tongariro
..t.. Ngauruhoe
North Island
Main Trunk~~~~/
'& Ruapelw
LMoalthango
Ohakune scoria
RAETIHIt
Pi:2~~~~~r;:':s,ervy' \J
o
Ohuta block
I)
metal pit
Koroniti school
'''''U
Kauarapaora
road
0
Kai Iwi water
supply
0
Figure 1: Location of Case Studies
80
defence
Chapter 2: Scenic Reserves of the North Island Main Trunk Railway –
Rangiwaea (1910), Whakapapa Gorge (1911), and Waimarino (1912)
2.1 Introduction
From 1910 to 1912, several areas of Maori owned land were taken for the preservation of
scenery along the route of the North Island Main Trunk railway between Marton and
Taumarunui. This chapter examines the acquisition of these lands, focussing particularly on
the following three takings:
Name of block
Rangiwaea 4F12
Taurewa 4 West
Waimarino 4B2
Area taken
75a 1r 20p
200a 2r 11p
128a 1r 2p
Date of taking
18 May 1910
6 July 1911
11 May 1912
Name of Scenic Reserve
Rangiwaea
Whakapapa Gorge
Waimarino
All of these lands were held by Maori under Crown derived title. The takings were all
carried out by the Public Works Department on behalf of the Scenery Preservation Board.
Notice of intention to take was given for each of the three areas on the following dates: 1
February 1910 (Rangiwaea), 15 March 1911 (Whakapapa Gorge), and 20 January 1912
(Waimarino). After the takings had been proclaimed, the Native Land Court ordered the
following compensation payments: £199 for the area taken from Rangiwaea 4F12 (13
March 1912), £436 16s 9d for the area taken from Waimarino 4B2 (13 October 1913), and
£687 for the area taken from Taurewa 4 West (23 September 1911). Whakapapa Gorge and
Waimarino scenic reserves both remain in Crown ownership today. However, the land
taken for Rangiwaea scenic reserve is now held in private European ownership. The reserve
status of this land was revoked in November 1920, after the bush upon it had been
destroyed. In 1956, a Rangataua farmer acquired a 15 year deferred payment licence over
the area, which had been redefined as Section 6 Block VI Kariori Survey District. In 1971,
at the conclusion of the 15 year term, this individual secured the freehold of the former
scenic reserve.
81
2.2 The Scenery Preservation Movement and Related Legislation
In her report on the scenic reserves of the Whanganui River, Robin Hodge discusses the
ideas concerning scenery preservation that were gaining influence in New Zealand at the
end of the nineteenth century.96 She explains that Western societies had begun to value
natural scenery in the late eighteenth century, when the doctrine of Romanticism changed
the way that wilderness areas were viewed. As this appreciation grew, lobby groups began
advocating for the permanent protection of scenic areas. It was thought that these places
should be held in public ownership, reserved permanently under legislation that protected
against uncontrolled exploitation. These ideas were expressed in the influential 1872
legislation that created Yellowstone, the world’s first national park. Though tourism was
acknowledged in wilderness legislation, there was generally no place for any ongoing use
and occupation of scenic areas. Indigenous people were therefore unable to continue living
in lands set aside for scenery preservation.
Similar views were promoted in New Zealand from the late 1880s. Hodge states that the
early proponents of scenery preservation in New Zealand emphasised that their aims were
not in conflict with the requirements of settlement. They stressed that they only wished to
protect bush upon land that was unsuitable for farming, and were motivated largely by the
economic impetus of tourism. It is notable that the scenery preservation movement was
largely a Pakeha concern, which had little input from Maori. As explained below, there was
considerable Maori opposition to the manner by which land was acquired under the scenery
preservation legislation.
In 1903, concern for the protection of scenic areas saw the creation of a Scenery
Preservation Commission.97 Established under the Scenery Preservation Act 1903, the
Commission was empowered to inspect and recommend for proclamation any Crown,
private, or Native land that was believed to be worthy of scenic, thermal, or historical
preservation. Section 5 of the 1903 Act enabled land to be taken for reserves under the
96
Robin Hodge, ‘The Scenic Reserves of the Whanganui River, 1891-1986’, a report commissioned by the
Waitangi Tribunal, 2002, pp 1-3.
97
Ibid, pp 14-16.
82
Public Works Act 1894. The Scenery Preservation Amendment Act 1906 replaced the
Commission with a permanent body, the Scenery Preservation Board, which was to
comprise of the Surveyor-General, the General Manager of the Tourists and Health Resorts
Department, and – for each land district – the Commissioner of Crown Lands.
As a result of the 1906 Amendment Bill having not been translated into Maori, all
references to Maori land were deleted from the Act. This cast doubt on the legality of
acquiring Maori land for scenic purposes, though it is apparent that such takings continued.
In February 1910, the Under-Secretary of Lands and Survey expressed the view that Maori
land could be acquired for scenic purposes under the Public Works Act 1908.98 However,
this position was subsequently contested by the Solicitor-General. In a letter written in May
1910, the Under-Secretary noted that the Solicitor-General had determined that Maori land
could not legally be taken for scenic reserves.99
The Scenery Preservation Act 1908, which merely consolidated the 1903 Act and 1906
Amendment Act, did not restore the provisions concerning Maori land. This appears to
have been the principal objective of the Scenery Preservation Amendment Act 1910, which
once again enabled Maori land to be legally taken for scenic purposes.100 Section 2 defined
‘private land’ to include Maori land, while section 10 stated that all previous takings of
Maori for scenic purposes under the Public Works Acts of 1894, 1905, and 1908 were
deemed to be valid. The 1910 Amendment Act also provided for some Maori use of scenic
reserves that had been in Maori ownership at the time of taking. The Governor could grant
Maori the right to take or kill birds, and also bury their dead in reserves that contained
urupa.101
Maori members of Parliament expressed concern at the process by which Maori land was
taken for scenic purposes. In debates surrounding the passage of the 1910 Amendment Act,
98
Ibid, p 18.
Ibid, p 17.
100
Ibid, pp 19-20.
101
Ibid.
99
83
Wi Pere criticised the way compensation was assessed.102 He also requested a clause in the
Bill that would require mutual agreement between owners and the government before land
could be taken. Pere withdrew this when the Attorney General assured him that ‘it must be
by mutual agreement – so that nothing can be done unless the Natives agree’.103 However,
it appears that such an approach was never followed. During parliamentary debates in 1916,
Apirana Ngata described a failure to consult with Maori owners when land was taken for
scenic reserves. He strongly criticised this approach, which he claimed had caused a
considerable amount of friction.104 Ngata stated that owners often only learnt of takings
when the proclamations were published in the Gazette. In contrast, when land was held by
Europeans, the owners tended to be consulted first, and the compulsory provisions of the
Public Works Act resorted to only when negotiations failed. Ngata insisted that there
should be similar consultation with Maori owners.
2.3 Scenic Reserves Along the North Island Main Trunk Railway
By January 1905, the Scenery Preservation Commission was considering the creation of
scenic reserves along the central section of the North Island Main Trunk railway. By this
time, the railway had been constructed and opened to traffic as far as Taihape from the
south, and as far as Kakahi Bridge from the north, which lay 10 miles beyond
Taumarunui.105 (It was not until February 1909 that the line was completed and opened for
regular trains.106) On 18 January 1905, the Under-Secretary of the Public Works
Department wrote to the Commission’s Chairman, S Percy Smith, enquiring about the
preservation of bush along the railway line between Mangaweka and Taihape.107 Smith
advised that a number of recommendations had been made for this section of line, and that
102
Cathy Marr, ‘Public Works Takings of Maori Land, 1840-1981’, p 103.
NZPD, 1910, vol. 153, pp 890-891, cited in Marr, p 103.
104
Marr, pp 103-104.
105
AJHR, 1904, D-1, p v.
106
AJHR, 1909, D-1, p v.
107
Under-Secretary, Public Works, to Smith, 18 January 1905, ABWN 7610 W5021/813 189 part 1, North
Island Main Trunk Railway – Preservation of Bush Scenery, 1904-1959, ANZ Wellington.
103
84
the Commission proposed to make additional reserves ‘along the line here & there,
northwards to Taumarunui.’108
A comprehensive inspection of potential scenic reserves along the railway does not appear
to have been undertaken until early 1907. Prior to this, the Commission – and later, Board –
seem to have relied largely on information supplied by interested officials and individuals
who believed that a particular area was worthy of preservation. On 20 September 1905, for
example, Crown land ranger H Lundius suggested that an area of bush on the right bank of
the Hautapu River should be set aside as a scenic reserve:
When travelling along the railway route now under construction . . . I was struck by the
beauty of the bush on the right bank of the Hautapu river, between Taurangarere and
Mataroa, and as this land can be seen from the railway the whole distance, I will strongly
recommend that steps are taken to secure it for scenic purposes. I feel sure it will be greatly
admired by persons travelling in the train . . . 109
Lundius stated that immediate steps should be taken to secure the land, explaining that he
had been informed that several persons were negotiating with the Maori owners for milling
rights. In a letter written on 2 January 1906, an individual named John Ammunson drew the
Commission’s attention to the scenic value of bush that stood on Maori owned Waimarino
4.110 He indicated that this bush was in danger of being felled, stating that two Europeans
had secured rights over this land. On 10 January 1906, Ammunson provided details of three
further areas along the railway – all on or near the Whakapapa River – that he believed
were worthy of preservation.111 On at least one occasion, the Public Works Department also
suggested that areas along the railway should be reserved for scenic purposes. Writing on
21 April 1906, the Under-Secretary of Public Works requested that the ‘very fine’ bush
108
Smith to Commissioner of Crown Lands, 26 January 1905, note on Under-Secretary, Public Works, to
Smith, 18 January 1905, ABWN 7610 W5021/813 189 part 1, ANZ Wellington.
109
Lundius to Commissioner of Crown Lands, 26 September 1905, ABWN 7610 W5021/813 189 part 1,
ANZ Wellington.
110
Ammunson to unknown, 2 January 1906 (extract), ABWN 7610 W5021/813 189 part 1, ANZ Wellington.
111
Ammunson to Commissioner of Crown Lands, 10 January 1906, ABWN 7610 W5021/813 189 part 1,
ANZ Wellington.
85
scenery of the gorges of the Makaretu and Piopiotea Rivers be ‘duly protected’.112 The
Under-Secretary of Lands and Survey advised that steps would be taken to create reserves
where the railway traversed the gorges.113 The available evidence indicates that there was
no Maori input into the proposed creation of any of these scenic reserves.
The preservation of bush along the railway line was also supported by some members of
Parliament, including H G Ell, MHR, who appears to have been very sympathetic to the
objectives of the Scenery Preservation Commission. Writing to the Minister of Public
Works on 16 May 1906, Ell complained of the destruction of bush along the railway,
requesting that reserves be created at regular intervals.114 Having previously informed the
Minister of his views on these issues, Ell advised the Minister that he had experienced
‘considerable surprise’ upon learning that ‘destruction abounds on every side’. He
reminded the Minister of the steps that he believed should be taken to protect the bush:
I am not asking you to accomplish anything impracticable. I have never asked you to do
anything which would seriously interfere with the carrying out of the works. Bush must be
felled if our roads and railways are to be made. Bush must be felled if the settlement of the
country is to continue. But that is not to say that scenic reserves are not to be made. In this
connection all that I have ever asked you to do is this, that your staff, when making roads or
railways shall leave in the immediate neighbourhood of the railway line or road line
twenty-five to thirty acres of native bush absolutely intact say every two miles or so. Surely
this is not an impossible request. You may take the large trees or such trees as may be
required for the carrying out of the public works on either side of such reserves; but I do
urge for the sake of those who will come after us and of the people living now, to make
reserves such as I suggest.115
112
Under-Secretary, Public Works, to Under-Secretary, Lands and Survey, 21 April 1906, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
113
Under-Secretary, Lands and Survey, to Under-Secretary, Public Works, 4 May 1906, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
114
Ell to Minister of Public Works, 16 May 1906, ABWN 7610 W5021/813 189 part 1, ANZ Wellington.
115
Ibid.
86
The Minister of Public Works referred Ell’s letter to the Minister of Lands.116 He agreed
with Ell as to the desirability of preserving the bush, but observed that the creation of
reserves lay outside the Public Works Department. Replying on 15 June 1906, the Minister
of Lands claimed that he had already taken action on the issues raised in Ell’s letter, stating
that the Makaretu – Piopiotea gorge area would soon be proclaimed a scenic reserve.117 The
Minister of Public Works welcomed the reservation of the bush in the gorge area, but
pointed out that Ell wanted patches of bush reserved every two miles throughout the entire
length of the railway where it passed through forest.118
On 29 June 1906, the Minister of Lands advised the Minister of Public Works that
instructions had been given for areas of bush to be reserved every two miles. It appears that
steps to establish the reserves were to be undertaken immediately. The Minister of Lands
expressed reservations about this, believing that the reserves might impede construction
work and should therefore be dealt with after the railway had been completed.119 The
decision to create the reserves appears to have been made in accordance with the wishes of
the Premier, Richard Seddon.120 It seems possible that Ell had discussed the reserves issue
with Seddon, winning his support on the matter.
In preparation for the creation of the reserves, the Scenery Preservation Board undertook an
inspection of the scenic lands that lay along the route of the railway between Marton and
Taumarunui. In March 1907, the Board reported to the Governor on its findings.121 The
Minister of Lands had requested the report under section 5 of the Scenery Preservation
116
Minister of Public Works to Minister of Lands, 30 May 1906, ABWN 7610 W5021/813 189 part 1, ANZ
Wellington.
117
Minister of Lands and Survey to Minister of Public Works, 15 June 1906, ABWN 7610 W5021/813 189
part 1, ANZ Wellington.
118
Minister of Public Works to Minister of Lands, 20 June 1906, ABWN 7610 W5021/813 189 part 1, ANZ
Wellington.
119
Minister of Lands to Minister of Public Works, 29 June 1906, ABWN 7610 W5021/813 189 part 1, ANZ
Wellington.
120
Under-Secretary, Lands and Survey, to Commissioner of Crown Lands, 29 June 1906, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
121
‘Appendix 2: The Scenery Preservation Amendment Act 1906 – Report’, AJHR, 1907, C-6, pp 33-38.
87
Amendment Act 1906.122 Summarising the scenic qualities of the lands through which the
railway would pass, and the reasons why these should be protected, the report noted:
The hundred odd miles of scenery traversed from Makohine [north of Marton] to Manunui
[south of Taumarunui] forms a national asset that, in our opinion, should be most jealously
conserved and protected. . . . Most of the area is not well adapted for close settlement, and the
timber growing thereon forms its principal value. The varieties of timber, the natural beauty of
the forest, its magnificent situation amongst numerous deep ravines and sinuous gorges through
which run rapid mountain streams, together with the background of frowning hills and lofty
ranges, and in the distance the grand snow-capped peaks of the Ruapehu, Ngauruhoe, and
Tongariro Mountains, all unite in proclaiming this portion of New Zealand as one of the
principal attractions of the colony.
As time goes on forest country will disappear from most of the other parts of the colony, but its
picturesqueness will be more appreciated as its extent diminishes. It is almost needless to say
that once the forest is sold and felled it can never be replaced as it now stands, and from the
climatic and utilitarian points of view its retention is necessary to secure much broken and
otherwise comparatively useless country from slipping into the valleys and gorges, and thus
becoming a perpetual eyesore in contrast to its present pristine beauty.123
The report provided a detailed description of the landscape and vegetation through which
the railway passed between Marton and Tuamarunui. Areas that had already been either
recommended for reservation or proclaimed as scenic reserves were noted in this
description and marked on plans that accompanied the report. Most of these areas were
located between Marton and Taihape, outside the Whanganui Inquiry District. One area of
Maori land on the banks of the Whakapapa River was subject to a recommendation that had
been made by the Board on 25 February 1907.124 As detailed below, part of this area was
later taken for Whakapapa Gorge scenic reserve.
122
Under section 5 of the Scenery Preservation Amendment Act 1906, the Minister of Lands could direct the
Scenery Preservation Board to inspect and report to the Governor on lands possessing scenic or historic
interest.
123
‘Appendix 2: The Scenery Preservation Amendment Act 1906 – Report’, AJHR, 1907, C-6, p 36.
124
Report of Scenery Preservation Board of the Wellington Land District, 25 February 1907, LS 70 6
Recommendations of Scenery Preservation Board, 1907-1911, ANZ Wellington.
88
The report concluded with a schedule that detailed 20 further areas that the Board
recommended for scenic reservation along the main trunk railway between Marton and
Taumarunui. The following table summarises these recommendations:
SPB resolution
number
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
Description of land
Area (acres)
Owner
Block IX, Hautapu SD, part of Section 5
Block VI, Hautapu SD, part Awarua 1A2 West
Block VI, Hautapu SD, part Awarua 4C8 and 4C9
Block II, Hautapu SD, part Awarua 4C9
Block IX, Ohinewairua SD, part Awarua 4A3C7
Block XII, Maungakaretu SD, part Section 10, and
parts Raketapauma 1I and 2
Block V, Ohinewairua SD, and part Rakepatauma 2
Blocks VI, VII, Karioi SD, part Rangiwaea block
Block VI, Karioi SD, part Rangiwaea 1
Block VI, Karioi SD
Block IV, Makotuku SD, part Raetihi 4B
Block IV, Makotuku SD, part Raetihi 4A and 5A
Block XVI, Manganui SD
Block XII, Manganui SD
Block XII, Manganui SD, Section 4, and part
Sections 6, 8, 9, 11, 13, 18, 19
Block VIII, Manganui SD
Block IV, Manganui SD
Block IV, Manganui SD, part Waimarino 4
Blocks XII and XVI, Kaitieke SD
Blocks XII and XVI, Kaitieke; and Blocks IX and
XIII, Tongariro SD
Blocks IV and VIII, Kaitieke SD
83
500
40
80
90
1200
Crown
Maori
Maori
Maori
Maori
Crown and Maori
50
2700
1500
450
1300
1000
1300
1500
1700
Crown and Maori
Crown
Crown
Maori
Maori
Crown
Crown
Crown
Crown
1800
600
1100
1800
3000
Crown
Crown
Maori
Crown
Crown
2600
Crown
The 20 areas that were recommended for scenic reservation were marked on plans that
accompanied the report. An examination of these plans shows that it was the Board’s
intention to establish scenic reserves along a considerable distance of the central section of
the main trunk railway, especially between Ohakune and Taumarunui. The total area
recommended for reservation was 24,393 acres, which comprised 20,213 acres of Crown
land and 4180 acres of Maori land. It should be noted that some of the Board’s resolutions
– 21, 22, 23, 24, and 25 – dealt with land that lay outside the Whanganui Inquiry District.
The report does not indicate that there was any consultation with those Maori whose lands
would be acquired for the proposed scenic reserves, or that the interests of the owners were
in any way taken into consideration. Much of the land through which the railway passed
89
had recently been purchased by the Crown. Many of the areas that continued to be held by
Maori were lands that had been retained from sale, and were therefore of particular
importance to the owners. Though mostly of limited value for agricultural purposes, these
remaining areas were intended to be of economic benefit to the owners. The land would
provided an ongoing source of mahinga kai, and also possessed valuable quantities of
standing timber.
The Scenery Preservation Board believed that, compared with privately owned European
land, the areas of Maori land required for the proposed scenic reserves would be relatively
easy to acquire. It expressed this view explicitly in the March 1907 report, stating that ‘it is
a comparatively easy task to secure the bulk of the forest land bordering the route of the
railway, as nearly the whole of it is in the hands of the Crown or Natives.’125 (It is notable
that the Board held this view even though there was doubt at this time as to the legality of
taking Maori land for scenic purposes.) With limited funds available for scenery
preservation, it seems that the Board’s position was based at least partly on a belief that the
Maori land was unsuitable for cultivation, and would therefore generally be less expensive
to acquire than land that had been purchased by Europeans for settlement. For example, in
its assessment of a large area of European settlement land in the vicinity of Ohakune, the
Board reported that ‘too great a sum would be payable by way of compensation were it
repurchased from its present owners’.126 This contrasted with Maori owned land lying
between Ohakune and Mt Ruapehu, which the Board believed could ‘no doubt . . . be easily
acquired if thought desirable, as the land is not very suitable for cultivation – in fact much
of it is quite unsuitable.’127 Both of these areas were covered in bush. The only substantial
monetary value that the Maori land possessed was for standing timber, while the European
land possessed additional value by the fact that it could be cultivated after the timber had
been removed. The Board’s belief that the Maori land would be relatively easy to acquire
probably also reflects the fact that the taking of this land would not conflict with the general
policy that demanded that scenic reserves were not to be created from land that was suitable
for settlement. The Board may have been concerned at the opposition that would arise if it
125
126
‘Appendix 2: The Scenery Preservation Amendment Act 1906 – Report’, AJHR, 1907, C-6, p 36.
Ibid, p 35.
90
attempted to acquire such land, particularly where it had already been purchased by
prospective farmers.
On 15 May 1908, the Under-Secretary of Lands and Survey discussed the proposed scenic
reserves in a memorandum prepared for the Minister of Lands.128 He explained that
progress with the reserves had been delayed because of the prevalence of bush fires.
However, as it had been established that there was little damage to the proposed reserve
lands, he suggested that steps be taken to survey and proclaim the areas that were in Crown
ownership. He advised the Minister that it would be impossible to reserve all of the Maori
owned areas because some had already been leased for timber cutting purposes. The UnderSecretary claimed that an experienced Government surveyor could inspect the proposed
reserves in Maori ownership and, if the bush was still intact, survey off an area within the
boundaries of the original recommendation, thereby retaining the bush ‘where it is most
needed.’ Though aware of the economic importance that the land had for Maori as a source
of revenue from milling, the Under-Secretary nevertheless believed that the takings should
proceed, and seemingly did not believe that there was any need to consult with the owners.
It appears that the only consideration of Maori interests was in terms of the compensation
that they would receive. The Under-Secretary believed that it would be difficult to estimate
the expense of acquiring the Maori owned areas, but thought that it would cost about
£10,000. This figure was calculated on the area of the reserves being reduced to about 3500
acres
upon
inspection
and
survey.
Cabinet
approved
the
Under-Secretary’s
recommendations on 20 May 1908.129
On 23 May 1908, the Under-Secretary of the Department of Lands and Survey wrote to his
counterpart in the Native Department, providing him with a schedule of the Maori owned
areas along the railway that had been recommended for acquisition as scenic reserves.130 He
asked that these lands be excluded from disposal, and assured that compensation would be
127
Ibid.
Under-Secretary, Lands and Survey, to Minister of Lands, 15 May 1908, ABWN 7610 W5021/813 189
part 1, ANZ Wellington.
129
Cabinet note, 20 May 1908, on Under-Secretary, Lands and Survey, to Minister of Lands, 15 May 1908,
ABWN 7610 W5021/813 189 part 1, ANZ Wellington.
128
91
paid after each of the areas had been surveyed and taken under the Public Works Act. The
Under-Secretary noted that the Aotea District Maori Land Board appeared to be aware of
the proposal to create the scenic reserves, and had inserted a clause in its leases that
provided that no compensation would be paid to lessees in the event of land being taken.
No further evidence on the role of the Maori Land Board has been located. It is therefore
unclear whether it took steps to advise the Maori owners of the proposed reserves. It may
be that the extent of the Board’s actions was to help the government achieve its policies,
rather than acting for Maori. In late October 1908, the Under-Secretary of Lands and
Survey began arranging for the proposed reserves to be surveyed.131 The Inspector of
Scenic Reserves, E Phillips Turner, was asked to assist with the surveys.
Many of the areas recommended for reservation along the main trunk railway between
Marton and Taumarunui - both Crown and Maori owned – were never set aside as scenic
reserves. Moreover, those reserves that were created were in most cases considerably
smaller than the area proposed in the Board’s recommendations. The following tables
present details of the Maori lands eventually taken for scenic purposes along the route of
railway:
SPB resolution number 10: Whakapapa Gorge Scenic Reserve
Proposed area
Date of taking
Area of Maori land taken
2401 acres (1791 acres of Crown land and 610 acres of Maori
land)
6 July 1911 (NZG, 1911, no. 51, pp 1994-1995)
200a 2r 11p from Taurewa 4 West (no Crown land was included)
SPB resolution number 26: Maungakaretu Scenic Reserve
Proposed area
Date of taking
Area of Maori land taken
1200 acres (unspecified areas of Crown and Maori land)
3 August 1911 (NZG, 1911, no. 59, p 2238)
70a 3r 00p from Raketapauma 2B1
61a 3r 05p from Ngaurukehu A10 Subdivision 1
20a 3r 36p from Ngaurukehu A10 Subdivision 2
130
Under-Secretary, Lands and Survey, to Under-Secretary, Native Department, 23 May 1908, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
131
Under-Secretary, Lands and Survey, to Inspector of Scenic Reserves, 20 October 1908, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.; Under-Secretary, Lands and Survey, to Commissioner of Crown
Lands, 20 October 1908, ABWN 7610 W5021/813 189 part 1, ANZ Wellington.
92
61a 2r 30.3p from Motukawa 2B7
total area: 215a 0r 31.3p (no Crown land was included)
SPB resolution number 27: Turangarere Scenic Reserve
50 acres (approximately 30 acres of Crown land and 20 acres of
Maori land)
8 August 1910 (NZG, 1910, no. 67, pp 1910)
25a 0r 32.5p from Motukawa 2D1 (part national endowment)
Proposed area
Date of taking
Area of Maori land taken
SPB resolution number 30: Rangiwaea Scenic Reserve
450 acres (all Maori land)
18 May 1910 (NZG, 1910, no. 33, p 1142)
75a 1r 20p from Rangiwaea 4F12
Proposed area
Date of taking
Area of Maori land taken
SPB resolution number 31: Ohakune Scenic Reserve
Proposed area
Date of setting apart
Area of Maori land involved
Note
1300 acres (all Maori land)
8 July 1911 (NZG, 1911, no. 57, p 2188)
1250a 0r 00p from Raetihi 4B
This land was in Crown ownership when it was set apart as a
scenic reserve. It had been declared Crown land on 4 May 1911,
having been acquired from it Maori owners by way of an exchange
carried out under section 368 and Part XIX of the Native Land Act
1909.132
SPB resolution number 38: Waimarino Scenic Reserve
Proposed area
Date of taking
Area of Maori land taken
1100 acres (all Maori land)
11 May 1912 (NZG, 1912, no. 38, pp 1393-1394)
128a 1r 02p from Waimarino 4B2
The takings for the Turangarere and Rangiwaea scenic reserves were carried out prior to the
assent of the 1910 Amendment Act in December 1910. The land for these reserves was
acquired in May and August 1910, by which time the Solicitor General had determined that
land could not legally be taken for scenic reserves under the existing legislation. The
Turangarere and Rangiwaea takings were seemingly carried out with the knowledge that
the amending legislation would retrospectively legalise all past takings. It appears that none
132
LS 70 16, Register of reserves, 1907-1915, ANZ Wellington, p 31.
93
of the use rights in the 1910 Amendment Act were applied to any of the reserves that were
created under this legislation. This may have been because the narrow belts of bush would
have been considered to be of little use to Maori for mahinga kai purposes. The only
opportunity for the owners to object to these takings was after the notice of intention to be
take had been issued. There is evidence of only one such objection, which was made in
regard to the taking of land for Waimarino scenic reserve. This objection is discussed
below.
It appears that the difference between the Board’s recommendations and the number and
size of the reserves that were eventually created was, in the case of the Maori owned lands,
at least partly a result of bush being removed before areas could be surveyed and
proclaimed. On 13 March 1909, Phillips Turner reported on some of the areas proposed for
reservation along the Hautapu and Rangitaikei Rivers, advising that ‘the millers have
already spoiled several of the Board’s selections.’133 The reserve land was clearly valuable
to Maori, perhaps not for farming, but certainly for the timber that stood upon it. It was
therefore important that the economic impact upon the Maori would be adequately
redressed through the process of determining and paying compensation.
2.4 Rangiwaea Scenic Reserve (1910)
In its March 1907 report, the Scenery Preservation Board’s resolution 30 recommended that
450 acres be acquired for a scenic reserve from Block VI of Karioi Survey District.134 This
land was defined in the recommendation as ‘the area of Native land between the road and
south side of the railway-line and east of the Waiakaki Stream’. The bush upon this area
was noted in the description of the railway route that was included in the Board’s report:
Just beyond the Niania Railway-station and township site, which is about ten miles from
Waiouru and two miles from the Native settlement of Karioi, the solid forest is met with . . . .
133
Inspector of Scenic Reserves to Under-Secretary, Lands and Survey, 13 March 1909, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
134
‘Appendix 2: The Scenery Preservation Amendment Act 1906 – Report’, AJHR, 1907, C-6, p 37.
94
Wajlangi Tribunal, Sep2004
lot 1
..
)P 2410
41 .3889
"
RANGIWAEA4F12B
37.3322
ML 4419
•••
-..
"'''"
Pt RANGIWAEA4F12A
63.2146
ML4419
CT 0111190
Pt RANGIWAEA4F16.1A
54.8425
ML 20330P 4665
CT 284f23O
Figure 2: Rangiwaea Scenic Reserve (Source: based on cadastral information
from Terraview, Terralink NZ)
95
On the north side for about two miles it is all Crown land, of which it is proposed to reserve
about 3000 acres, together with a small portion of Native land on the opposite side of the line.135
Only 75 acres 1 rood 20 perches was eventually acquired for a scenic reserve from the
recommended area of 450 acres. This narrow strip of land along the southern side of the
railway, which became known as Rangiwaea scenic reserve, was taken from Rangiwaea
4F12. The available evidence provides no clear explanation as to why the taken area was
diminished, though the destruction of bush may have been a factor. The Scenery
Preservation Board requested the Public Works Department to take the land from
Rangiwaea 4F12 on 12 November 1909. Unfortunately, the Public Works Department file
for the taking has been either lost or destroyed, and it is therefore not possible to provide a
comprehensive narrative of the taking process.136
On 1 February 1910, the Minister of Public Works signed a notice of intention to take 75
acres 1 rood 20 perches from Rangiwaea 4F12 for a scenic reserve.137 The notice detailed
that the land would be acquired under the Scenery Preservation Act 1908 and the Public
Works Act 1908. It also detailed that a plan of the land would be available for inspection at
Karioi post office, and that objections had to be made in writing to the Minister of Public
Works within 40 days of publication of the notice. Without the relevant file evidence, it is
impossible to know whether the owners made a formal objection to the taking. The land
was taken by a proclamation dated 12 April 1910.138 It passed into Crown ownership on 18
May 1910. As noted earlier, the Solicitor-General had by this time determined that Maori
land could not legally be taken for scenic reserves.
Almost two years after the taking, on 13 March 1912, the Native Land Court heard an
application from the Public Works Department for an assessment of compensation for the
land taken from Rangiwaea 4F12.139 The owners were not represented at the hearing, and it
135
Ibid, pp 34-35.
The file for this taking was PW 10/3601. ABWN W5280 132/4, Proclamation register, 1902-1912, ANZ
Wellington, p 168.
137
New Zealand Gazette, 1910, no. 11, pp 459-460.
138
New Zealand Gazette, 1910, no. 11, p 1142.
139
Wanganui minute book 62, 13 March 1912, pp 71-72.
136
96
was therefore concluded quickly. The representative of the Public Works Department, Mr
Bold, provided details of the taking and told the Court that the land was part of an area that
had been leased for 42 years from March 1910. The rental for this lease was £55 9s per
annum, which equated to 3s 3d an acre. Bold stated that the government valuation for the
taken area was £199. The Court ordered that compensation of £199 be paid to the owners,
and also that rent on the lease be reduced by £12 2s per annum. It appears that the Court
made this order without having sought the views of the owners.
On 18 November 1920, the reservation status of Rangiwaea scenic reserve was revoked by
a proclamation issued under section 8 of the Scenery Preservation Amendment Act 1910.140
The proclamation detailed that the land was no longer suitable for scenic purposes because
the forest upon it had been destroyed. In cases such as this, section 8 of the 1910
Amendment Act provided that the land could be replanted as an alternative to the
revocation of reserve status. When a reservation was revoked, as in the case of Rangiwaea
scenic reserve, the land was to be disposed of by the Crown under the Land Act 1908, with
the proceeds of disposal being applied solely towards the acquisition of other scenic
reserves. This provision departed from the Public Works principle that provided that taken
land should be offered back to the original owners if it was no longer required for the
purpose for which it was acquired.
Following the revocation of reserve status, no immediate steps were taken to dispose of the
former scenic reserve. It appears that the area was leased until June 1956, when Rangataua
farmer L C E Jordan secured a deferred payment license over the land.141 This licence,
issued under the Land Act 1948, enabled Jordan to purchase the former scenic reserve by
making payments over a 15 year period. At the end of this term, on 23 August 1971, Jordan
secured a freehold title over the land. Archival evidence relating to this disposal has not
been located. It is unclear whether any consideration was given to offering the former
owners an opportunity to obtain the deferred payment license. It is also unclear whether the
proceeds of the lease went to obtaining other scenic reserves.
140
141
New Zealand Gazette, 1920, no. 95, p 3141.
CT 709/35, Wellington land district, LINZ.
97
100
,
metres
yards
-\~
---.
Whakapapa River .. _
_
,1-')I
_00
SC1on.
1·1.4011)
,
Figure 3: Whakapapa Gorge Scenic Reserve (Source: based on cadastral
information from Terraview, Terralink NZ)
98
2.5 Whakapapa Gorge Scenic Reserve (1911)
As noted earlier, an individual named Ammunson had suggested in January 1906 that land
in the vicinity of the Whakapapa River should be reserved for scenic purposes.142 On 25
February 1907, the Scenery Preservation Board recommended the reservation of 2401 acres
of bush covered land along the Whakapapa River.143 The recommendation proposed that
this land be known as Whakapapa Gorge scenic reserve, and defined it as comprising 1791
acres of Crown land and 637 acres of Maori land, all of which was located in Block X
Hunua Survey District, Block III Waimanu Survey District, and Block IV Kaitieke Survey
District. The railway route followed part of the eastern boundary of the proposed reserve.
The Board’s March 1907 report noted that an area along the Whakapapa River had already
been recommended for reservation:
Between Oio Station (116 miles) and Owhango Station three miles north, and on towards
Kakahi Station, there are at intervals splendid views of the Whakapapa River foaming
along for some eight miles in a densely wooded gorge beneath the railway line. The area
for some distance of the line and the river has already been recommended for reservation
for scenic purposes, which together with a considerable area of bush on both sides of the
line as now recommended should be maintained in its virgin state.144
When finally created in July 1911, Whakapapa Gorge scenic reserve contained an area of
only 200a 2r 11p. All of this land, which was located on the eastern bank of the Whakapapa
River, was taken from Maori-owned Taurewa 4 West. No Crown land was included in the
reserve. Again, there is no clear explanation as to why the reserve was considerably small
than the proposed area. As with Rangiwaea scenic reserve, the Public Works file relating to
the taking appears to have been either lost or destroyed. A detailed description of the taking
process therefore cannot be provided.
142
Ammunson to Commissioner of Crown Lands, 10 January 1906, ABWN 7610 W5021/813 189 part 1,
ANZ Wellington.
143
Report of Scenery Preservation Board of the Wellington Land District, 25 February 1907, LS 70 6, ANZ
Wellington.
99
The taking of land from Taurewa 4 West for Whakapapa Gorge scenic reserve was carried
out by the Public Works Department. A notice of an intention to take the land was signed
by the Minister of Public Works on 15 March 1911 under the provisions of the Scenery
Preservation Act 1908, the Scenery Preservation Amendment Act 1910, and the Public
Works Act 1908.145 The notice detailed that a plan of the area proposed for taking could be
inspected at the Taumarunui post office. The land was taken by a proclamation dated 15
June 1911.146 The taking took effect on 6 July 1911.
On 11 August 1911, the Native Land Court heard an application by the Public Works
Department for an assessment of compensation for the land taken from Taurewa 4 West.147
The Department’s representative, Bold, was unable to attend the hearing, but had sent a
telegram that was read before the Court. In his telegram, Bold detailed that a special
government valuation had assessed the taken land to be worth £687, inclusive of timber. He
asked if the interested parties would be prepared to accept this sum. The case was held over
to allow the matter to be discussed by the owners, some of whom appear to have been
present in Court. It was probably standard practice for the agreement of owners to be
sought in cases where the application was not formally presented to the Court. Otherwise, it
seems that the Court was prepared to make compensation awards without consulting
owners, unless they were either present or represented at the hearing.
The Tauwera 4 West compensation case opened again on 21 September 1911. As well as
assessing the sum of compensation, the Court had to ascertain the owners who were entitled
to receive the payment.148 The date for the hearing had been fixed so that all owners could
be notified, enabling them to attend if they wished. The minutes note that many of the
owners were in attendance. Bold was not present at the hearing. When the compensation
offer was put to the owners, they intimated that they were not willing to accept the sum.149
The Judge stated that he would notify the Public Works Department accordingly. However,
144
Ibid, p 36.
New Zealand Gazette, 1911, no. 21, pp 1000-1001.
146
New Zealand Gazette, 1911, no. 51, pp 1994-1995.
147
Tokaanu minute book 1, 10 August 1911, p 120.
148
Ibid, 21 September 1911, p 332.
149
Ibid, p 333.
145
100
the owners reversed their position, stating that they would accept the sum offered. They
asked that the compensation be paid to certain nominated individuals, whose shares in the
land would be reduced accordingly. The Court asked for responses to this suggestion,
whereupon Wi Kiriwehi stated that the whole block was under consideration for partition.
He thought that the money should remain unpaid until the matter of partition had been dealt
with. The case was held over to the following day.
When the Court reconvened on 22 September 1911, Tuiti Macdonald handed in a list of the
names of 15 individuals to whom, it had been agreed, the compensation should be paid.150
One owner, Ngahuia Taranui, objected to this, but then withdrew her objection after it was
explained that her husband was on the list, ensuring that her family was represented. A
further objection was made by Puataata Grace, who wished to have his name and those of
his siblings added to the list.151 This objection was also withdrawn after other owners
explained that the list had been arranged for the hapu by elders. The Court accepted the
proposal, pointing our that no injustice was being done: ‘those who do not share in money
retain their full shares in the land and those who share in the money have their shares
reduced accordingly’. The list was verbally accepted by all of the owners named upon it or
their representatives.152 The Court adjourned the case to enable the Public Works
Department to agree to the arrangement. When the case reopened on the following day, the
Judge read a telegram from Bold, who advised that the Public Works Department accepted
the compensation agreement.153 The Court was then briefly addressed by one of the owners,
Turangopito, who confirmed that the owners were prepared to accept the sum offered.
Turangopito stated that he had been present during the survey, and believed that there were
‘better portions in [the] block than this.’ The Court accordingly ordered that £687 be paid to
the owners named in the list as compensation for the land taken for the scenic reserve.154
150
Ibid, 22 September 1911, p 334.
Ibid, pp 335-336.
152
Ibid, pp 337-338.
153
Ibid, 23 September 1911, p 339.
154
Ibid, pp 339-340.
151
101
Wailangi TribuIlaI, Sep2004
PI Sec 8 Blk XVI
KAITIEKESD
SO 16466
(32.0764)
\
,
\
~-
~
I,
Waimarino
,
,
Scenic
i
Reserve
,
I
~"
1
1
,I
,
i
,
I
Figure 4: Waimarino Scenic Reserve (Source: based on cadastral information
from Terraview, Terralink NZ)
102
Whakapapa Gorge scenic reserve remains in Crown ownership. It was classified as a scenic
reserve under the Reserves Act 1977 on 27 August 1980.155
2.6 Waimarino Scenic Reserve (1911)
It has already been noted that, in a letter written on 2 January 1906, an individual by the
name of John Ammunson drew the Commission’s attention to the scenic value of the bush
that stood on Maori owned Waimarino 4.156 Ammunson thought that this bush would
provide ‘splendid scenery for the coming railway and tourists and also act as shelter’.
However, he indicated that the bush was in danger of being felled, claiming that two
Europeans, Riddiford and McDonnell, had secured rights over this land. In fact, rights over
Waimarino 4 appear to have been secured by just one individual, Charles McDonnell. In
June 1905, McDonnell had obtained a lease and timber cutting rights over the block.157
Upon receipt of Ammunson’s letter, Smith requested that an inspection be made of the bush
on Waimarino 4.158
In its March 1907 report, the Scenery Preservation Board’s resolution 38 recommended that
1100 acres be acquired for a scenic reserve from Waimarino 4.159 This land was defined in
the recommendation as ‘a strip of Native land, about 60 chains in width, west of the
railway-line and Otamaewa Stream.’ The bush upon this area, which bounded the
Waimarino Plains, was mentioned in the description of the railway route that was included
in the Board’s report:
About two miles from the [Makatote] viaduct the line emerges from the bush and enters the
historic Waimarino Plains. These undulating, grassy slopes, covering an area of about eight
miles in length and from one to four in width, form a remarkable feature in the midst of the vast
155
New Zealand Gazette, 1980, no. 107, p 2703.
Ammunson to unknown, 2 January 1906 (extract), ABWN 7610 W5021/813 189 part 1, ANZ Wellington.
157
Ibid, p 112.
158
Smith to Marchant, 6 February 1906, on Ammunson to unknown, 2 January 1906 (extract), ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
159
‘Appendix 2: The Scenery Preservation Amendment Act 1906 – Report’, AJHR, 1907, C-6, p 37.
156
103
forests surrounding them . . . . The line skirts the edge of the forest on the east side for some
three or four miles, and then crossing the plains, runs close to and parallel with the western
forest line until it once again enters it.160
McDonnell’s timber cutting license was not confirmed by the Aotea District Maori Land
Board until 1908. On 28 April 1908, the Commissioner of Crown Lands wrote to the
Under-Secretary of the Department of Lands and Survey, advising that the Land Board had
recently dealt with an application concerning timber cutting rights over Waimarino 4.161
The Commissioner stated that the Land Board’s recommendation to the Native Minister
included a clause that disallowed McDonnell from claiming damages in the event of the
land being taken for a scenic reserve. In light of this, he suggested that immediate steps
should be taken to acquire the portion of the block that was desired for the reserve. In his
reply, the Under-Secretary did not acknowledge that there was any cause for urgency,
stating simply that ‘the whole question of acquiring and reserving areas of Native land in
the Waimarino Forest has already been brought before the Government, and is now under
consideration.’162
Unlike the Rangiwaea and Whakapapa Gorge takings, the Public Works Department file
for the taking of land for Waimarino scenic reserve has been located. On 29 December
1911, the Under-Secretary of Lands and Survey wrote to the Under-Secretary of Public
Works, requesting that an area of 128 acres 1 rood 2 perches be taken from Waimario 4B2
under the Public Works Act 1908 and the Scenery Preservation Amendment Act 1910.163
He enclosed a plan and schedule of the land, and explained that a recommendation had
been made by the Scenery Preservation Board, with approval given by the Government.
Again, it is unclear why the area proposed in the original recommendation had been
diminished.
160
Ibid, p 35.
Commissioner of Crown Lands to Under-Secretary, Lands and Survey, 28 April 1908, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
162
Under-Secretary, Lands and Survey, to Commissioner of Crown Lands, 5 May 1908, ABWN 7610
W5021/813 189 part 1, ANZ Wellington.
163
Under-Secretary, Lands and Survey, to Under-Secretary, Public Works, 29 December 1911, ABKK
W4069/122 52/6, Scenic Reserve – Waimarino, 1911-1958, ANZ Wellington.
161
104
Notice of intention to take the land for Waimarino scenic reserve was given on 20 January
1912.164 The notice detailed that a plan of the proposed scenic reserve was available for
inspection at the Raurimu post office. The notice first appeared in the New Zealand
Gazette, but was later also published in the Ohakune Times.165 On 8 February 1912, the
Under-Secretary of Public Works wrote to his counterpart in Lands and Survey, asking that
copies of the notice be served upon the owners and the lessee.166 Owing to the lack of
relevant file evidence, it is unclear whether notice was similarly served upon the owners of
the lands required for the other scenic reserves.
On 29 February 1912, Haitana Te Kauhi and 12 others – all presumably owners – wrote a
letter of objection to the Minister of Public Works. The letter raised not only the issue of
the taking for scenic purposes, but also a number of other concerns:
We the persons who have subscribed our names here to altogether object to the above named
piece of land or any part thereof being reserved as Scenery or for any other purpose of the
Government. We state our objections:
1.
We desire that this land be left as a home and for the cultivation of our children after us.
2.
A railway line has been laid over this land and you people have not yet paid us for the part
so taken.
3.
You have not yet paid us for the earth and gravel which you took off this land, for road and
railway.
4.
You have not yet paid us for the area taken for the road which has been made over the land
for the benefit of the General Public.
5.
We have sent in an application for subdivision of the land by the Native Land Court due to
sit at Taihape on the 1st of March, 1912. We shall know then who will be awarded the part
you propose to take.
6.
We notice that you propose to take part of this land for purposes of the Defence System.
7.
You have not yet paid us for the portion taken as a site for the railway station.
164
New Zealand Gazette, 1912, no. 5, p 282.
Clerk in charge, Advertising Department, to Under-Secretary, Public Works, 12 February 1912, ABKK
W4069/122 52/6, ANZ Wellington.
166
Under-Secretary, Public Works, to Under-Secretary, Lands and Survey, 8 February 1912, ABKK
W4069/122 52/6, ANZ Wellington.
165
105
These are our objections and proposals and if they are not clear to you you had better come to
Raetihi, where we shall supplement those with many others, after which we may come to some
mutual agreement.167
The owners appear to have been unaware that land had already been acquired for defence
purposes, indicating that the publication of proclamations in the Gazette did not provide
adequate notice of taking. On 15 March 1911, an area of 1416 acres 3 roods 34 perches had
been taken from Waimarino 4B2 under the Public Works Act 1908.168 This land lay on the
eastern side of the railway line. Compensation was determined by the Native Land Court on
19 March 1912.169 Part of the defence taking, an area of 366 acres 3 roods 38 perches, was
revoked in 1912, with the remaining area added to Tongariro National Park in 1922 and
1941.170
On 14 March 1912, the Assistant Under-Secretary of Public Works forwarded a copy of the
owners’ letter to the Under-Secretary of Lands and Survey, requesting a report on the
objections that it raised.171 In his reply, the Under-Secretary of Lands and Survey addressed
only the three issues that concerned the proposed scenic reserve taking, points 1, 5, and
6.172 (As to the other matters, he believed the Public Works Department would be ‘in full
possession of the facts’.) With regard to point 1, the Under-Secretary claimed that the
owners were not occupying the land, and could therefore not use occupation as a grounds
upon which to challenge the taking:
up to the present the owners have not resided on the land, nor shown any inclination to do so,
and their present expressed wish to use it as a home does not appear to be sufficiently strong
to warrant the relinquishment of the scenic reserve.173
167
Te Kauhi and others to Minister of Public Works, 29 February 1912 (translation), ABKK W4069/122 52/6,
ANZ Wellington.
168
New Zealand Gazette, 1911, no. 13, p 616.
169
Wanganui minute book 62, 19 March 1912, pp 86-89.
170
New Zealand Gazette, 1912, no 2, p 16; Tongariro National Park Act 1922; New Zealand Gazette, 1941,
no 52, p 1866.
171
Assistant Under-Secretary, Public Works, to Under-Secretary, Lands and Survey, 14 March 1912, ABKK
W4069/122 52/6, ANZ Wellington.
172
Under-Secretary, Lands and Survey, to Under-Secretary, Public Works, 30 March 1913, ABKK
W4069/122 52/6, ANZ Wellington.
173
Ibid.
106
As to points 5 and 6, the Under-Secretary did not believe that these were matters that
should prevent the acquisition of the scenic area.
In a letter written on 2 April 1912, the Under-Secretary of Public Works informed the
owners that their objections had been rejected and that the taking would therefore
proceed.174 Indicating that there were limited grounds for opposing a taking, he advised the
owners that their concerns relating to previous takings were considered irrelevant to the
proposed taking, and in any case, had not disadvantaged them. With regard to the
construction of the railway and the use of gravel and stones for this purpose, it was claimed
that the loss suffered had ‘been more than counterbalanced by the increase in value of the
Waimarino Block.’ (This view clearly was not consistent with the principle that
compensation should be objectively determined.) As to the land acquired for defence
purposes, the Under-Secretary stated that a compensation award had been made by the
Native Land Court and that this sum would soon be paid to the owners. The owners’ wish
to retain the land as a place of occupation was rejected because there was no evidence of
residence. This view was based on a limited definition of ‘occupation’, one that recognised
residence, but not other forms of occupation such as temporary use for obtaining mahinga
kai.
Having dealt with the objection, the Public Works Department prepared the proclamation.
On 11 April 1912, the proclamation was ready for signing.175 An accompanying note
explained that the proclamation had been prepared at the request of the Department of
Lands and Survey, and that all preliminary statutory requirements had been met. The
proclamation was signed by the Governor on 16 April 1912, and took effect on 11 May
1912.176 The proclamation detailed that the land was taken under the Public Works Act
1908, the Scenery Preservation Act 1908, and the Scenery Preservation Amendment Act
1910. On 3 May 1912, the Assistant Under-Secretary wrote to the clerk in charge of the
174
Under-Secretary, Public Works, to Rini and others, 2 April 1912, ABKK W4069/122 52/6, ANZ
Wellington.
175
Kimbell to Short, 11 April 1912, ABKK W4069/122 52/6.
176
New Zealand Gazette, 1912, no. 38, pp 1393-1394.
107
Advertising Department, requesting that details of the proclamation be printed in a local
newspaper.177
In preparation for the assessment of compensation, the Assistant Under-Secretary wrote to
the Valuer-General, requesting that a valuation be made of the area taken for the scenic
reserve.178 On 25 February 1913, the Native Land Court began hearing the compensation
case for the 128 acres 1 rood 2 perches taken from Waimarino 4B2 for the scenic reserve.
The Public Works Department was again represented by Bold, while a Mr Harris appeared
on behalf of some of the owners. The lessee, McDonnell, was represented by David Craig,
the Wanganui District Government Valuer. The Court heard first from Bold, who began by
outlining the events that preceded the taking, including the objection that had been made by
the owners.179 He then detailed that the land, located near Waimarino Station, was covered
with bush except for a small area of open land. Bold noted that the Court had recently
assessed compensation for the land that was taken from Waimarino 4B2 for defence
purposes. He explained that McDonnell had secured a lease and timber cutting rights over
the land. Bold told the Court that the Public Works Department wished to pay
compensation based on the government valuation of the taken area.180 He stated that this
had been assessed at £97, detailing that the 93 acres of bush upon the land had been valued
at £1 an acre, with the remaining area of swamp valued at 2s 6p.181
Bold called before the Court the District Government Valuer, Craig, who had carried out
the valuation of the taken land. Craig stated that that the 93 acres of ‘hilly bush’ was not
suitable for milling as the trees were scattered and ‘short in trunk’. He thought that if the
bush was felled from this land it would carry grass only during summer. Craig described
the balance of swamp land to be ‘of little or no value’, which probably could not be
drained. During cross-examination by Harris, he claimed that the bush land did not include
more than two trees per acre that were over two feet in diameter. Providing evidence
177
Assistant Under-Secretary, Public Works, to clerk in charge, Advertising Department, 3 May 1912, ABKK
W4069/122 52/6, ANZ Wellington.
178
Assistant Under-Secretary, Public Works, to Valuer-General, 3 May 1912, ABKK W4069/122 52/6, ANZ
Wellington.
179
Wanganui minute book 64, 25 February 1913, p 104.
180
Ibid, p 106
108
relating to the lessee’s interest, Craig told the Court that the land might possess ‘a
substantial value’ if it was used for a special purpose such as a mill site and there was no
other suitable land was available. He also stated that if the taken area was included in a
larger area of bush it might be paid for as if of equal value.182
The next witness called by Bold was Crown lands ranger Harry Lundius, who informed the
Court that he had undertaken an inspection of the taken area. His evidence was consistent
with that given by Craig, though he thought that it might possess slightly greater values: £1
2s 6d an acre for the bush land and 5 shillings an acre for the area of swamp. Lundius stated
that sawmillers had told him that they would not fell the bush because the trees were too
short. He also spoke of a sawmiller who had taken his plant to Waimarino, but had then
moved on after assessing the inferior nature of the bush. During cross-examination by
Harris, Lundius explained that he had not taken the timber into account in his £1 2s 6d an
acre assessment because there were not more that two millable trees an acre.
At the conclusion of Bold’s evidence, Harris opened his case on behalf of the owners. He
told the Court that he represented the following individuals: the successors of Te Ao
Kairakau and Te Waonuiatane, Ngawini Te Wao, the children of Tarerewa, and the
Tawhero family.183 Harris stated that he agreed with Lundius’ valuation of the land, but
believed that there was millable timber on the area taken. He also thought that the taking
depreciated the value of the remaining land. Harris asserted that the bush on the taken area
was worth £5 an acre if worked in conjunction with the land that lay behind it. He conceded
that, by itself, the land was valueless.
Harris called Albert Allaway before the Court. Allaway was a Raetihi sawmill hand who
claimed to have 12 years experience in the bush, felling and cross-cutting logs. He told the
Court that he knew the land in question, having visited it on several occasions. Though he
had not undertaken a close inspection of the taken area for the compensation case, Allaway
181
Ibid, p 105.
Ibid, p 106.
183
Ibid, p 107.
182
109
estimated that it contained 12 to 15 millable trees per acre. He acknowledged that the trees
were rather short, but thought that ‘all appeared round and millable’.
After an adjournment, the Court heard from each of the three representatives.184 Craig
addressed the Court first, stating that he did not wish to call further evidence on behalf of
McDonnell. Harris told the Court that he wished to gather further evidence for the owners
and have an inspection made of the land. The case was adjourned following Harris’ request.
When it reopened on 29 May 1913, Harris told the Court that he had inspected the land
with an expert. He proceeded to call a witness, Thomas Harris, who informed the Court that
he had been in the business of inspecting and purchasing land for milling purposes for five
years.185 Thomas Harris stated that he had spent one day examining the taken land, and had
found upon it kahikawaka, rimu, totara, matai, and miro, all fit for milling. (Kahikawaka
was perhaps another name for the tree that is commonly known as kahikatea.) He told the
Court that he had measured off two portions and then counted the trees suitable for milling
within these areas: the first area of half an acre contained 16 milling trees, while the second
area of one acre contained 33 such trees. Thomas Harris observed that the land was
conveniently situated for milling purposes because of its proximity to the railway.186 He
stated that royalty payments for timber in such a situation were 1s 6d per 100 feet. He
estimated that there were 7000 to 8000 feet of timber per acre on the bush land.187
The next witness called before the Court was Albert Allaway, who had appeared previously
when the case had opened in February. Allaway told the Court that he had been present
during part of Thomas Harris’ inspection, and had helped to count some of the trees.188 He
thought that the bush area generally contained about 12 to 15 millable trees an acre.
Concurring with Thomas Harris’ estimation, Allaway thought that there were 7000 to 8000
feet of timber per acre. During cross-examination by Craig, Allaway stated that he believed
that the value of the lease would be diminished by the loss of the taken land because the
open area contained the most suitable site for a mill.
184
Ibid, p 112.
Ibid, 29 May 1913, p 333.
186
Ibid, p 334.
187
Ibid, p 333.
185
110
Following Allaway’s evidence, the Court heard from William Rodgers, also a sawmiller
from Raetihi. Rodgers had also been present during the March inspection, and claimed to
have seen ‘pretty well the whole of the land.’189 He told the Court that he thought there
were about 12 millable trees per acre on the land and estimated that royalties on the timber
would yield £7 an acre. This calculation was based on the rate of 2s per 100 feet, which was
considered by Rodgers to be ‘a fair royalty’. During cross-examination by Craig, Rodgers
told the Court that he had been in negotiations with McDonnell for the bush, and had hoped
to establish a mill on the open portion of the taken land.
Closing statements were made at the conclusion of Rodgers’ evidence. Harris, the owners’
representative, told the Court that he accepted Lundius’s valuation as to the value of the
land, but contested the view that the timber possessed no value. He pointed to the evidence
that suggested that the timber had a value of £5 to £7 an acre. Craig then informed the
Court that McDonnell was entitled to compensation for the loss of land taken out of the
lease, which included a site for a mill or homestead. Addressing the Court last, Bold again
pointed out that McDonnell had claimed that the residue left after the defence taking was
worthless. As to the value of the timber, Bold noted that the Maori owners were only
entitled to 1s per 100 feet under the terms of the timber cutting license held be McDonnell.
The Court delivered its decision on the compensation case on 13 October 1913.190 Owing to
the ‘serious disparity’ in the evidence concerning the value of the timber, the Court had
made an inspection of the land. It claimed to be satisfied that the evidence provided on
behalf of the owners ‘states the facts as near as they can be stated on estimation.’ Offering
an explanation for the valuation that had been provided by the district valuer, the Court
stated that he had incorrectly regarded kahikawaka as an unmarketable, valueless timber.
However, the evidence showed that this timber was often sold as totara and was valuable
for certain purposes. The Court accepted that the owners should be paid a timber royalty of
1s per 100 feet as provided in the timber grant to McDonnell. As to the open land, it
concurred with the view that it possessed little value. The Court awarded the owners of
188
189
Ibid, p 334.
Ibid, p 335.
111
Waimarino 4B2 compensation of £436 16s 9d, which was to be paid in accordance with
their relative interests. This sum was based on the following calculations:
Bush Area
Value of timber per acre (1s per 100 feet on estimate of 7000 feet per acre)
Value of land per acre
Value of land and timber per acre
Total value of bush area (92a 2r 1p)
£3 10s 0d
£1 2s 6d
£4 12s 6d
£427 16s 9d
Open Area
value of land per acre
Total value of open area (35a 3r 1p)
5s 0d
£9 0s 0d
Total
£436 16s 9d
The Court ordered compensation of £10 to McDonnell, the lessee and holder of the timber
grant. This compensation was for the loss of the open land. It was calculated at the same
rate that that had been applied when compensation had been determined for the land taken
for defence purposes, 4s an acre. The Court was unconvinced that the open area was
uniquely well situated site for a mill. It was noted that McDonnell was unable to claim any
compensation for the timber grant because of the condition that had been imposed by the
Aotea District Maori Land Board upon confirmation of this grant. Rent under McDonnell’s
lease was abated in proportion to the area of land taken.
The land taken for Waimarino scenic reserve remains in Crown ownership. On 26 August
1985, along with adjacent land, it was classified as a scientific reserve under the Reserves
Act 1977.191
2.7 Conclusion
At a time when there was doubt as the legality of taking Maori land for scenic purposes, the
Scenery Preservation Board’s proposal to create scenic reserves along the central section of
the North Island Main Trunk railway was made without either direct Maori input or
thorough consideration of Maori interests. Many of the proposed reserves involved large
190
191
Wanganui minute book 65, 13 October 1913, pp 37-39.
New Zealand Gazette, 1985, no. 187, p 4397.
112
areas of Maori land, much of which was of importance to the owners because it had been
retained from sale. Though probably not suitable for settlement purposes, this land
contained valuable timber, and was perhaps also used for obtaining mahinga kai. Maori
interests appear to have been considered only in terms of the compensation that would be
payable for taken lands. The owners may have been willing to enter into exchange
arrangements, but the lack of consultation meant that they had no opportunity to discuss
such options. It appears that the owners of the lands that were eventually taken for the
scenic reserves were not granted any of the use rights that were provided under the 1910
Amendment Act.
It is unclear whether the owners received adequate notification of the intention to take land
for the scenic reserves. Of the three takings that have been examined in detail, file evidence
relating to this issue exists only for Waimarino scenic reserve. In this case, notice was
served upon the owners. While this was not a statutory requirement, it ensured that the
owners were made aware of the taking, which cannot always have been the case when a
notice was published only in the Gazette and a local newspaper. It is unclear whether notice
was similarly served upon the owners of the other lands. It is also unclear whether the
Maori Land Board attempted to inform the owners of the proposed takings, or whether the
only action taken by the Board was to assist the takings by inserting protective clauses in
leases.
Owing to the lack of file evidence, it is unclear how many objections were made to the
proposed takings. The Waimarino file contains evidence of an objection by the owners of
Waimarino 4B2, who expressed a desire to occupy the proposed scenic reserve. The owners
also detailed a number of grievances relating to other public works matters. Their objection
was dismissed by the Public Works Department, indicating that there were few grounds
upon which a taking could be opposed. It is notable that the Department’s view of
occupation was limited only to residence, not other forms such as temporary use for
obtaining mahinga kai. In their objection, the owners of Waimarino 4B2 indicated that they
were not aware that land had been taken for defence purposes, which suggests that the
ordinary notification procedures were inadequate.
113
The compensation cases that are examined in this chapter show that the extent to which the
owners’ interests were protected depended on whether or not they were represented at the
hearing. In the case concerning Rangiwaea scenic reserve, where the owners were not
represented, the hearing was concluded quickly, with the Court accepting the compensation
offered by the Public Works Department without careful scrutiny of the evidence. This
contrasts with the Waimarino case, where the owners’ representative challenged the
Department’s offer, resulting in a greater compensation award. The extent to which owners
were effectively notified of the hearings is unclear. The complicated and conflicting nature
of the evidence that was presented in the Waimarino case raises doubts as to whether the
Court was competent to assess compensation claims. Compensation was determined only
on the basis of commercial value, with no account given to mahinga kai, cultural
perceptions, or the fact that the land comprised part of a limited area that had been retained
by Maori.
The disposal of lands taken for scenic reserves appears to have departed from the principle
that required land to be returned to the original owners when it was no longer required for
the purpose for which it was taken. After the bush on Rangiwaea scenic reserve had been
destroyed by fire, the Scenery Preservation Amendment Act 1910 provided that the land
could be disposed of and the revenue from the sale then applied to the acquisition of further
scenic reserves. (It might be argued that the intention of purchasing other scenic lands with
the proceeds of disposal was not inconsistent with the principle of offer back.) It seems that
the Lands and Survey Department failed to meet statutory requirements following the
destruction of the bush on Rangiwaea scenic reserve. Though the reserve status of the land
was revoked, the Department did not follow through with the required disposal. The land
was apparently leased for many years before a local farmer secured a deferred payment
license over the land, which was freeholded in 1971. There is limited evidence concerning
the disposal of the land that had comprised Rangiwaea scenic reserve. It is unclear whether
any efforts were made to allow the former owners to obtain the land.
114
Chapter 3: Defence – Waiouru Training Ground Takings (1942 and 1961)
3.1 Introduction
In 1942 and again in 1961, large areas of Maori land on the Central Plateau were taken for
extensions to Waiouru military training ground. All of this land was held by Maori under
Crown derived title. Both takings were carried out by the Public Works Department at the
request of Army Headquarters. On 30 July 1942, part of Rangipo North 6C (1850 acres)
and the whole of Rangipo Waiu 1B (4474 acres) were taken under the Public Works Act
1928. This taking was not preceded by notice of intention to take, such notice not being a
statutory requirement for defence takings. It appears that no compensation was awarded for
the 1942 taking. Further Maori land, a total area of 29,167 acres 1 rood and 8 perches, was
taken under the 1928 Act by a proclamation dated 7 December 1961. Except for various
subdivisions of Rangipo Waiu 2B, an area of 5073 acres 1 rood 8 perches, most of the
Maori land taken at this time lies outside the boundaries of the Whanganui Inquiry District.
Though not a statutory requirement, notice of intention to take had been given for
‘diplomatic’ reasons on 19 July 1960. Previous to this, and over a number of years,
unsuccessful efforts had been made to purchase the land from the Maori owners. Exchange
proposals had also been considered. The Maori Land Court assessed the compensation
payable for the 1961 taking on 6 October 1961. All of the lands taken in 1942 and 1961
remain in Crown ownership and continue to be used for defence purposes.
3.2 The Establishment of Waiouru Training Ground
Plans to establish a military training ground at Waiouru date from 1932, when it was
proposed that land in the area might be used for an artillery range. In November 1932, two
Army officers made an inspection of large areas of land near Waiouru, which they
described as Runs 1, 2, and 3.192 Their report shows that none of this land was in Maori
192
Parkinson and Park to Director of Artillery, 7 November 1932, AD 1/1450 204/232 part 1, Camp –
Waiouru – Military, 1940-1944, ANZ Wellington.
115
ownership. Run 2 was a State Forest, while Runs 1 and 3 were owned by a European, W
Schollum, who was purchasing the land from the Crown through the Lands and Survey
Department’s deferred payment system. On 16 December 1932, the Under-Secretary of
Defence wrote to the Land Purchase Officer of the Public Works Department, requesting
that steps be taken to secure shooting rights over Runs 1 and 3 for three months each
year.193 He noted that these lands, a total area of 67,800 acres, had been found to be
‘eminently suitable’ for military purposes. In March 1934, Schollum agreed to allow his
Waiouru lands to be used without payment for military training purposes.194 It appears that
he had been persuaded to provide this access by the Lands and Survey Department, which
in return granted an extension on the time that Schollum would be given to meet payment
arrears that were owing for his purchase of the land.195
By the late 1930s, the Defence Forces wished to secure permanent rights over Schollum’s
land. On 5 August 1938, the Minister of Defence wrote to the Minister of Lands, explaining
the Army’s position.196 He stated that Schollum was not using the land for farming, and
appeared to be awaiting a favourable sale by avoiding forfeiture with comparatively small
payments. Describing the land to be ‘practically the only suitable area for Artillery training
and shooting practice in the North Island’, the Minister asked – in view of the
Government’s desire to have a successful voluntary training scheme – that consideration be
given to taking the land under the Public Works Act 1928. He believed that this was the
only action that would enable the Army to secure the required training area. In reply, the
Minister of Lands did not address the question of compulsory acquisition, possibly
believing that such action would be inappropriate.197 He instead expressed disappointment
at the Land Board’s failure to confirm the forfeiture of Schollum’s deferred payment
license, and hoped that the Defence Forces would be able to continue to secure temporary
use rights from Schollum.
193
Under-Secretary, Defence, to Land Purchase Officer, Public Works, 16 December 1932, AD 1/1450
204/232, part 1, ANZ Wellington.
194
Schollum to Minister of Public Works, 28 March 1934, AD 1/1450 204/232, part 1, ANZ Wellington.
195
Under-Secretary, Defence, note for file, 18 September 1933, AD 1/1450 204/232, part 1, ANZ Wellington.
196
Minister of Defence to Minister of Lands, 5 August 1938, AD 1/1450 204/232, part 1, ANZ Wellington.
197
Minister of Lands to Minister of Defence, 31 August 1938, AD 1/1450 204/232, part 1, ANZ Wellington.
116
The Minister of Defence wrote again to the Minister of Lands, informing him that
Schollum had not responded to recent requests for his land to be used for the upcoming
training season.198 He again suggested that the most suitable step would be compulsory
acquisition under the Public Works Act 1928. Schollum advised on 17 September 1938 that
his land was under offer, but stated that if the transaction did not proceed he would be
pleased to again allow the Defence Forces to use his land.199 Moves to have the land taken
continued, with the Army Secretary preparing a memorandum for the Minister of Defence
that recommended that Cabinet authorise a taking under the 1928 Act.200 The Chief of the
General Staff appended a note to this memorandum, emphasising the importance of the
training area in the event of war, an ever more likely prospect.201
On 31 October 1938, Schollum telegraphed Jones, the Minister of Defence, advising that he
had leased his Waiouru land, but had secured the lessee’s consent for the Defence Forces to
continue using the land for its annual camps.202 However, the Defence Forces’ wish to
acquire the land remained unchanged, and on 29 May 1939 the Army Secretary wrote to the
Minister of Defence, again asking him to promote the idea of taking the land under the
Public Works Act 1928.203 The Minister of Defence eventually referred the question of the
taking to Treasury, which reported in July 1939 that the land could only be acquired by
taking under the Public Works Act 1928.204 It was noted that the option of forfeiting the
deferred payment license would be complicated because of a large payment recently made
by Schollum. The decision to take the land was finally made by Cabinet on 18 September
1939.205 Any doubts about the necessity of securing permanent rights would
unquestionably have been removed by the outbreak of war in Europe and the anticipated
training requirements of the New Zealand force that would participate in this conflict.
198
Minister of Defence to Minister of Lands, undated, AD 1/1450 204/232, part 1, ANZ Wellington.
Schollum to Army Secretary, 6 September 1938, AD 1/1450 204/232, part 1, ANZ Wellington.
200
Army Secretary to Minister of Defence, 17 September 1938, AD 1/1450 204/232, part 1, ANZ Wellington.
201
Chief of the General Staff, note on Army Secretary to Minister of Defence, 17 September 1938, AD
1/1450 204/232, part 1, ANZ Wellington.
202
Schollum to Jones, 31 October 1938, AD 1/1450 204/232, part 1, ANZ Wellington.
203
Army Secretary to Minster of Defence, 29 May 1939, AD 1/1450 204/232, part 1, ANZ Wellington.
204
Secretary to the Treasury to Acting Minister of Finance, 7 July 1939, AD 1/1450 204/232, part 1, ANZ
Wellington.
205
Jeffery, note of Cabinet approval, 18 September 1939, AD 1/1450 204/232, part 1, ANZ Wellington.
199
117
On 12 October 1939, the Army Secretary wrote to the Permanent Head of the Public Works
Department, advising him of Cabinet’s decision, and requesting that steps be taken to
secure the land under the Public Works Act 1928.206 Noting that it was desired that military
training should commence immediately, the Army Secretary asked that action be taken as
soon as possible. Subdivisions 2, 3, and 4 of Run 1, and Subdivisions 1, 2, and 3 of Run 3,
a total area of 51,600 acres, were taken on 17 November 1939 by a proclamation issued
under the Public Works Act 1928.207 This land comprised all that held by Schollum under
deferred payment license.208 He owned a further area of 15,850 acres, Subdivision 1 of Run
1, which the Lands and Survey Department had required him to purchase outright when the
deferred payment license had been taken up. Schollum’s solicitors asked that this area also
be acquired by the Crown, being of no use on its own. Commenting on this proposal, the
Quartermaster-General noted that the additional land would be ‘desirable from the point of
view of utilisation of the training area’.209 The decision to acquire the 15,850 acres was
made by Cabinet on 25 January 1940.210 On 18 December 1940, the Army Secretary wrote
to the Under-Secretary of the Public Works Department, requesting that the land be secured
by proclamation.211 The land was eventually taken on 22 June 1942 under the Public Works
Act 1928.212
There was a considerable delay in settling compensation for the lands taken from Schollum
by the 1939 and 1942 proclamations. No agreement could be reached on the matter, with
the Public Works Department deeming that a claim for £134,000 made by Schollum’s
solicitors was ‘out of all reason’.213 On 13 December 1943, the case was eventually put
206
Army Secretary to Permanent Head, Public Works, 12 October 1939, AD 1/1450 204/232, part 1, ANZ
Wellington.
207
New Zealand Gazette, 1939, no. 138, p 3062.
208
Under-Secretary, Lands and Survey, to Army Secretary, 17 June 1938, AD 1/1450 204/232, part 1, ANZ
Wellington.
209
Quartermaster-General to army Secretary, 29 November 1939, AD 1/1450 204/232, part 1, ANZ
Wellington.
210
Army Secretary to Under-Secretary, Public Works, 18 December 1940, AD 1/1450 204/232, part 1, ANZ
Wellington.
211
Ibid.
212
New Zealand Gazette, 1942, no. 61, p 1652.
213
Army Secretary to Minister of Defence, 19 November 1940, AD 1/1450 204/232 part 2, Camp – Waiouru
– Military, 1940-1944, ANZ Wellington.
118
before the Compensation Court, which determined an award of £56,226.214 (The value of
the land taken was stated to be £55,700.) Cabinet approved the payment of the
compensation on 13 January 1944.215 A total of £48,813 was deducted from the award to
cover the amount owed on the deferred payment license and land tax arrears.216
3.3 The 1942 Taking
By 1941, investigations were being undertaken into how the Waiouru defence lands might
be extended to meet the training requirements of an increasing number of recruits and
different types of units.217 On 14 January 1941, Colonel Powles, the Camp Commandant,
informed Army Headquarters that the camp should be enlarged by the acquisition of the
following lands:
(1) Two areas of land located north of Waiouru, on either side of the Waiouru - Tokaanu
road, which would enlarge the artillery shooting ground.
(2) Part of Waiouru township, which would provide an easily accessible drill ground.
(3) An area of flat land between the Waiouru – Tokaanu road and the Waitangi Stream.218
Of the two areas that would extend the artillery shooting ground, one was an area of State
Forest comprising 8380 acres, while the other area was land owned by Maori – part of
Rangipo North 6C (1850 acres) and the whole of Rangipo Waiu 1B (4474 acres). The total
area of the required Maori land was 6324 acres.
File evidence indicates that, on 30 January 1941, discussions were held between Defence
Headquarters and the Native Department as to the best way to proceed with the acquisition
of the Maori land.219 The Under-Secretary of the Native Department then discussed the
214
Land Purchase Officer to Under-Secretary, Public Works, 16 December 1943, AD 1/1450 204/232 part 3,
Camp – Waiouru – Military, 1940-1944, ANZ Wellington.
215
Note of Cabinet approval, 13 January 1944, AD 1/1450 204/232 part 3, ANZ Wellington.
216
Treasury voucher, undated, AD 1/1450 204/232 part 3, ANZ Wellington.
217
Army Secretary to Minister of Defence, 18 June 1941, AD 1/1450 204/232 part 2, ANZ Wellington.
218
Camp Commandant to Army Headquarters, 14 January 1941, AD 1/1450 204/232 part 2, ANZ Wellington.
219
Note for file (writer unknown), 30 January 1941, AD 1/1450 204/232 part 2, ANZ Wellington.
119
matter in a letter written to the Registrar of the Native Land Court on 31 January 1941.220
The Under-Secretary stated that Army Headquarters expected that the land would be
required permanently. However, believing that there was a possibility that it would not be
needed after hostilities had concluded, the Under-Secretary thought that the land might – as
an alternative to compulsory acquisition under the Public Works Act – be temporarily used
under the Defence Emergency Regulations 1939. He explained that Regulation 6 enabled
the Defence Minister to authorise the use of any land needed for defence purposes. This did
not require the freehold acquisition of the land, and compensation was paid only for any
loss and injury. The Under-Secretary stated that he would suggest this option to Army
Headquarters, with whom the decision rested. The Registrar was asked to make personal
contact with the owners or their leaders and establish whether there was any serious
objection to the land being taken under the Public Works Act or used under the Defence
Emergency Regulations. The Under-Secretary pointed to the ‘importance of this question in
relation to the successful prosecution of the war’, and asked that this be impressed upon the
Maori owners. He stated that the land in question was desert country that was unsuitable for
any form of cultivation. The Under-Secretary of the Native Department also wrote to the
Army Secretary on 31 January 1941.221 He advised that he had written to the Registrar of
the Court, and suggested that the land might be acquired under the Defence Emergency
Regulations.
The Registrar of the Court replied to the Under-Secretary on 7 February 1941, providing
title details for the two Maori blocks.222 He advised that in February 1913 an assembled
meeting of the owners of Rangipo Waiu 1B had resolved to sell the land, but that an Order
in Council issued under Part XIV of the Native Land Act 1909 had stipulated that the land
could only be leased. He noted that a lease had never been arranged, attributing this to ‘the
nature of the country’. With regard to Rangipo North 6C, the Registrar detailed that the
total number of owners was in the vicinity of 200. He stated that the owners of both blocks
220
Under-Secretary, Native Department, to Registrar, Native Land Court, 31 January 1941, AD 1/1450
204/232 part 2, ANZ Wellington.
221
Under-Secretary, Native Department, to Army Secretary, 31 January 1941, AD 1/1450 204/232 part 2,
ANZ Wellington.
120
were Ngati Tuwharetoa, and resided principally in the Taihape and Tokaanu districts. As to
the question of the proposed acquisition of these lands for defence purposes, the Registrar
thought that an informal meeting could be held at Tokaanu if Army Headquarters wished to
consult with the owners. He stated that this meeting could be attended by Native
Department and Defence officials, who could discuss compensation issues with the owners.
The Registrar believed that the owners would not raise any objection to the land being
occupied by the Army for war purposes.
The Native Department clearly believed that efforts should be made to consult with the
owners. On 26 February 1941, the Under-Secretary wrote to the Army Secretary, advising
him of the details provided by the Registrar of the Court.223 He noted that there was a
considerable number of owners in both blocks and indicated that a meeting of owners could
be arranged. On 28 March 1941, having received no reply, the Under-Secretary wrote again
to the Army Secretary, asking whether he wanted a meeting of owners to be arranged.224
There is no evidence of a reply to this letter, and it may be that by this time Army
Headquarters had resolved that the land should be acquired permanently under the
provisions of the Public Works Act. This was certainly the case by 18 June 1941, when the
Army Secretary discussed the proposed acquisition of additional defence lands at Waiouru
in a memorandum written for the Minister of Defence.225 With regard to the land in Maori
ownership, he noted that it was already being used and recommended that it be permanently
acquired by taking under the Public Works Act. (This recommendation was also made in
respect to the others area that were required for the enlargement of the Waiouru defence
lands.) It was estimated that the cost of acquiring the 6324 acres of Maori land would be
three shillings an acre.
222
Registrar, Native Land Court, to Under-Secretary, Native Department, MA 1/69 5/5/29 Rangipo North 6G
Rangipo Waiu 1B – Purchase by Army Department – Defence Purchase at Waiouru, 1941-1941, ANZ
Wellington.
223
Under-Secretary, Native Department, to Army Secretary, 26 February 1941, AD 1/1450 204/232 part 2,
ANZ Wellington.
224
Under-Secretary, Native Department, to Army Secretary, 28 March 1941, AD 1/1450 204/232 part 2, ANZ
Wellington.
225
Army Secretary to Minister of Defence, 18 June 1941, AD 1/1450 204/232 part 2, ANZ Wellington.
121
On 31 October 1941, Cabinet approved the acquisition of additional lands for Waiouru
training ground.226 It was decided that the following areas should be taken under the Public
Works Act:
State Forest land
8380 acres
Maori land
6324 acres
‘Waitangi area’
1000 acres
Waiouru township land
258 acres
‘Small areas’
113 acres
Following this decision, the Army Secretary wrote to the Permanent Head of the Public
Works Department, requesting that steps be taken to execute the takings.227 On 12
November 1941, the Assistant Under-Secretary of Public Works wrote to the Chief
Surveyor, asking that surveys be made of the lands that would be taken.228 The Maori land
was taken on 13 July 1942 by a proclamation issued under the Public Works Act 1928.229
Notice of intention to take was not given prior to the taking, such notice not being required
for lands required for defence purposes.230 Four sections of Waiouru Township were also
taken at this time. The other lands were taken in 1943.231
3.4 Failure to Award Compensation for the 1942 Taking
On 21 May 1943, the Land Purchase Officer of the Public Works Department wrote to
District Valuer, O Gardener, who had recently assessed the value of the taken Maori
lands.232 Gardener was asked to attend the Native Land Court’s hearing of the application
226
Note of Cabinet approval, 31 October 1941, on Army Department memorandum, 8 August 1941, AD
1/1450 204/232 part 2, ANZ Wellington.
227
Army Secretary to Permanent Head, Public Works, 5 November 1941, AAQB W3950/104 23/406/1 part 1,
Waiouru Military Camp, 1939-1958, ANZ Wellington.
228
Assistant Under-Secretary, Public Works, to Chief Surveyor, 12 November 1941, AAQB W3950/104
23/406/1 part 1, ANZ Wellington.
229
New Zealand Gazette, 1942, no. 68, p 1886.
230
Section 254, Public Works Act 1928.
231
New Zealand Gazette, 1943, no. 19, pp. 357-358.
232
Land Purchase Officer, Public Works, to District Valuer, 21 May 1943, AAQB W3950/104 23/406/1 part
1, ANZ Wellington.
122
for an assessment of compensation. On 16 June 1943, the Assistant Under-Secretary of
Public Works wrote to the Under-Secretary of the Lands and Survey Department,
requesting details of any survey liens that could be discharged when compensation was
determined.233 In reply, the Under-Secretary detailed that both blocks were subject of
survey liens: £95 16s 8d was owed on Rangipo Waiu 1B, and £60 1s 11d on Rangipo North
6C.234 The total amount owing was £155 18s 7d.
The compensation case was heard by the Court at a sitting held at Wanganui on 9 June
1943.235 The Maori owners were not represented at the hearing. It is unclear whether they
were notified. The application was presented to the Court by the Public Works
Department’s Land Purchase Officer, H J Voice, who explained that a special valuation had
been made by the District Valuer. Voice stated that Gardener considered the lands to have
no commercial value and had deemed them each to be worth a nominal sum of £5.
Gardener was then sworn before the Court as a witness. He stated that he had known the
land in question ‘for many years’, and described it as ‘lying well on the slopes of Ruapehu’,
with soil that consisted of ‘huge boulders, rocks, stones, down to gravel and scoria’.
Gardener noted that, apart from some stunted growth, there was very little vegetation on
either of the blocks. He also detailed that the land was crossed by numerous water courses
and was very exposed. Gardener described the land to be quite unsuitable for ordinary
farming, though was less sure about the potential it might possess for the growth of timber.
He thought that if the land was in any way suitable for timber growth the Crown would be
the only purchaser. Gardener compared the Maori lands with Subdivision 1 of Run 1, the
15,850 acres that had been taken from Schollum on 22 June 1942. (Schollum had paid
£2000 for this land.236) He claimed that Subdivision 1 of Run 1 was a ‘different class of
country.’ In terms of land value, he provided the analogy of ‘a dead sheep worth nothing
compared with a sick sheep which could be worth something if it recovered.’
233
Assistant Under-Secretary, Public Works, to Under-Secretary, Lands and Survey, 16 June 1943, AAQB
W3950/104 23/406/1 part 1, ANZ Wellington.
234
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 3 August 1943, AAQB
W3950/104 23/406/1 part 1, ANZ Wellington.
235
Wanganui minute book 102, 9 June 1943, pp 102-103.
236
Note for file (writer unknown), 16 June 1941, AD 1/1450 204/232 part 2, ANZ Wellington.
123
Gardener’s assessment of the value of the taken Maori lands contrasts markedly with earlier
valuation information that had been sought by Army Headquarters. On 16 June 1941, a
member of staff at Army Headquarters had recorded valuation details for the lands that had
yet to be taken for the enlargement of the training area.237 The capital value of the Rangipo
North 6C land was noted to be £442 (or approximately three shillings an acre), while the
capital value of the Rangipo Waiu 1B land was noted to be £127 (or approximately one
shilling an acre). It was noted that the figures were based on information provided by both
the Lands and Survey Department and the Valuation Department. It was estimated that the
cost of acquiring both areas would be three shillings an acre.
At the conclusion of Gardener’s evidence, the Court held the case over to enable the Crown
to make another offer. Though the minute book is silent on the matter, the Court believed
that the Crown’s offer had been unreasonable. Writing on 12 August 1943, Voice advised
the Under-Secretary of Public Works of the Court’s position on the matter.238 Voice stated
that the Court had pointed to two factors: first, it had noted the size of the area taken, which
was approximately 10 square miles; secondly, it had claimed that the owners had wished to
retain the land. (No indication is given as to how the Court had learnt of the owners’ views
of the taking.) Noting that he had discussed the matter with the Judge, Voice believed that
an offer of £250 would be acceptable, from which £155 18s 7d could be deducted for
survey liens, leaving the owners with about £94. This recommendation was approved by
Treasury, the Minister of Defence, and the Minster of Works.239
Writing on 14 September 1943, the Registrar indicated that the offer would be accepted if
the survey liens were reduced or cleared.240 Believing that the liens were ‘out of all
proportion to the value of the land’, he put forward a proposal on behalf of the owners that
an application be made to the Court under section 503 of the Native Land Act 1931 for a
recommendation that at least part of the liens be released. The Registrar thought that until
237
Note for file (writer unknown), 16 June 1941, AD 1/1450 204/232 part 2, ANZ Wellington.
Land Purchase Officer, Public Works, to Under-Secretary, Public Works, 12 August 1943, AAQB
W3950/104 23/406/1 part 1, ANZ Wellington.
239
Notes on Land Purchase Officer, Public Works, to Under-Secretary, Public Works, 12 August 1943,
AAQB W3950/104 23/406/1 part 1, ANZ Wellington.
238
124
such an application had been lodged with the Court, and dealt with, the application for the
assessment of compensation should be held over. There is no further file evidence relating
to the assessment of compensation for the Maori lands that were taken in July 1942. It
appears that no further attention was given to the matter, with the result being that no
compensation, of any amount, was ever paid to the owners of the taken lands. An example
of government agencies failing to protect Maori interests, the matter may have stalled
owing to confusion as to how the survey liens were to be reduced or discharged under
section 503. The registrar had indicated that an application to the Court was required. In
fact, it was up to the Court to make a recommendation, which then enabled the Minister of
Lands to discharge whole or part of any survey liens.241
3.5 Background to the 1961 Taking
In 1949, Army Headquarters began considering a proposal to acquire an additional area of
almost 43,000 acres for a further extension of the Waiouru military training ground. This
land, which was mostly Maori owned, was located to the east of the existing defence lands.
In a memorandum written for the Minister of Defence on 8 November 1949, the Army
Secretary explained why the proposed extension to the existing Waiouru training area was
thought to be necessary:
The purpose of the proposal is to provide an adequate training area for field exercises. The
peace time training of the Army must be made as realistic as possible and for this reason it
is most important that the Territorial Force should be able in the future to carry out field
firing with all types of weapons. To conduct this type of training under safe conditions it is
necessary to set aside wide land areas in which movement by the public can be controlled.
As the velocity and range of modern weapons increase so the size of the range areas must
be increased. It is not practicable to establish any considerable number of gun range areas
240
Registrar, Native Land Court, to Assistant Under-Secretary, Public Works, 14 September 1943, AAQB
W3950/104 23/406/1 part 1, ANZ Wellington.
241
Section 503, Native Land Act 1931.
125
but it is essential that those which are established should be adequate to permit manoeuvre
and shooting and to guarantee immunity of the public.242
The Army Secretary noted that Waiouru Camp was the only large scale military training
area in New Zealand, and was the future training ground for artillery, armour, and North
Island infantry formations. He claimed that the narrow shape of the existing training area
and the Waiouru-Tokaanu road both restricted the firing of artillery and the manoeuvre of
large bodies of men. The Army Secretary stated that the disadvantages of the existing
Waiouru training ground would be overcome if the large area of tussock country located to
the east was secured for defence purposes.
On 16 August 1949, the Army Secretary wrote to the Commissioner of Works with regard
to the proposed extension of Waiouru Camp.243 He explained that the Army Board wished
to enlarge the defence area because the shape of the existing reserve imposed ‘serious
limitations’ on manoeuvres and artillery shooting. The Army Secretary provided the
Commissioner of Works with a list of the blocks that the Army Board wished to acquire,
noting that the bulk of these lands were in Maori ownership. He asked the Commissioner of
Works to consider the proposed acquisition of the European lands, and stated that the
Department of Maori Affairs was being asked to similarly consider the proposed
acquisition of the Maori lands. Replying to the Army Secretary on 6 September 1949, the
Commissioner of Works indicated that no action would be taken with regard to the
European lands until it was clear that the Maori lands – comprising most of the proposed
extension – would be acquired.244
The Army Secretary also wrote to the Under-Secretary of Maori Affairs on 16 August
1949.
245
He explained the proposed addition to the Waiouru defence area and provided
242
Army Secretary to Minister of Defence, 8 November 1949, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
243
Army Secretary to Commissioner of Works, 16 August 1949, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
244
Commissioner of Works to Army Secretary, 6 September 1949, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
245
Army Secretary to Under-Secretary, Maori Affairs, 16 August 1949, MA 1/75 5/5/68, Waiouru military
camp – acquisition of additional land by Army Department, 1949-1962, ANZ Wellington.
126
details of the Maori lands that would be required for the extension. On 29 August 1949, the
Under-Secretary forwarded the Army Secretary’s letter to the Registrar of the Maori Land
Court in Wanganui, asking for the Registrar’s comments on the proposal and also
requesting ownership details for the lands in question.246 The Under-Secretary suggested
that a ‘special meeting’ might be called to enable the proposal to be discussed with the
owners. Replying on 14 September 1949, the Registrar agreed that a meeting should be
called.247 He provided ownership and area details for the lands required for the proposed
extension. These details, with amendments made by the Land Purchase Officer of the
Public Works Department, are presented below.248
Block
Kaimanawa 3B
Rangipo Waiu 2B1A
Rangipo Waiu 2B1B
Rangipo Waiu 2B1C
Rangipo Waiu 2B1D
Rangipo Waiu 2B1E
Rangipo Waiu 2B2
Rangipo Waiu 2B3
Rangipo Waiu 2B4
Oruamatua Kaimanawa 2A
Oruamatua Kaimanawa 2B1
Oruamatua Kaimanawa 2B2
Oruamatua Kaimanawa 2C1
Oruamatua Kaimanawa 2E
Oruamatua Kaimanawa 2O
Oruamatua Kaimanawa 2P
Oruamatua Kaimanawa 2Q1
Oruamatua Kaimanawa 2Q2
Oruamatua Kaimanawa 3A
Oruamatua Kaimanawa 3B
Oruamatua Kaimanawa 3C
Oruamatua Kaimanawa 3D
Oruamatua Kaimanawa 3E
Oruamatua Kaimanawa 3F
Ownership Details
Crown land
Maori land: 1 original owner, 2 successors.
Maori land: 1 original owner, no successors.
Maori land: 1 original owner, 4 successors.
Maori land: 3 original owners, 14 successors.
Maori land: 1 original owner, 22 successors.
Maori land: 7 original owners, 39 successors.
Maori land: 4 original owners, 22 successors.
Maori land: 8 original owners, 12 successors.
Maori land: 23 original owners, 65 successors.
European land: W H Turnbull and O S Watkins.
Maori land: 3 original owners, 2 successors.
Maori land: 1 original owner, 1 successor.
European land: D E Christie and A G H Marshall.
Maori land: 1 original owner, 6 successors. (leased to T H
Lowry and E J Watt for 50 years from 1 May 1906).
European land: Forest Land Company.
European land: W H Turnbull and O S Watkins.
Maori land: 2 original owners, 1 successor.
Maori land: 18 original owners, 33 successors.
European land: Tussock Land Company.
Maori land: 10 original owners, 7 successors.
Maori land: 8 original owners, 18 successors.
Maori land: 18 original owners, 14 successors.
Maori land: 1 original owner, 5 successors.
Total
246
Area
2355a 0r 00p
332a 1r 08p
332a 1r 08p
498a 1r 31p
762a 0r 31p
379a 2r 36p
996a 0r 21p
1107a 3r 18p
664a 1r 15p
2712a 2r 00p
3000a 0r 00p
3080a 0r 00p
1570a 0r 00p
3282a 0r 00p
1695a 2r 00p
1695a 2r 00p
1516a 0r 00p
200a 0r 00p
2112a 0r 00p
6334a 0r 00p
1467a 0r 00p
910a 2r 00p
4402a 2r 00p
1467a 0r 00p
42,881a 3r 08p
Under-Secretary, Maori Affairs, to Registrar, Maori Land Court, 31 August 1949, MA 1/75 5/5/68, ANZ
Wellington.
247
Registrar, Maori Land Court, to Under-Secretary, Maori Affairs, 14 September 1949, MA 1/75 5/5/68,
ANZ Wellington.
248
Amended ownership and area details for lands required for extension of Waiouru military training ground,
AATC W3457/400 50/0, Waiouru Military Camp – Maori Land, 1950-1960, ANZ Wellington.
127
Of the blocks detailed above, only the Rangipo Waiu lands, with a total area of 5073 acres
1 rood 8 perches, lie within the Whanganui Inquiry District.
The Under-Secretary of Maori Affairs forwarded the above list to the Army Secretary on 28
September 1949.249 Pointing to the large areas of land and large number of owners
involved, the Under-Secretary advised that he believed that a meeting of owners and
departmental representatives should be held. He stated that the purpose of such a meeting
would be to explain the proposal to the owners and ascertain their ‘general feeling’. The
Under-Secretary noted that the lessees of the leased blocks would probably wish to be
present. He questioned whether the Army Secretary would be agreeable to a meeting being
held, and asked if Army Headquarters would contribute towards the expenses incurred by
attending owners. On 8 November 1949, the Army Secretary wrote to the Under-Secretary
of Maori Affairs, advising that government approval of the proposed acquisition was being
sought.
250
He stated that negotiations would be undertaken by the Ministry of Works after
this approval had been secured, and until such time the Department of Maori Affairs would
be required to take no further action.
The Army Secretary discussed how the additional lands might be secured in a
memorandum prepared for the Minister of Defence on 8 November 1949.251 He thought
that it would be necessary for the Crown to obtain title to the lands, explaining that this
would eliminate possible claims for injury to stock or damage to the land, which would not
be the case if the land was held under lease. The Army Secretary stated that the Ministry of
Works should be requested to immediately negotiate for the required lands so that the
training area might be extended as soon as possible. Commenting on the proposed meeting,
he felt that it was ‘obvious that a considerable amount of negotiation will be necessary and
that it will probably be some months before the transaction could be completed.’ The Army
Secretary described the land to be ‘mostly barren tussock country supporting only deer,
wild horses and pigs and in general is not much used by the various Maori owners’.
249
Under-Secretary, Maori Affairs, to Army Secretary, 28 September 1949, MA 1/75 5/5/68, ANZ
Wellington.
250
Army Secretary to Under-Secretary, Maori Affairs, 8 November 1949, MA 1/75 5/5/68, ANZ Wellington.
128
Providing slightly different figures than the Registrar of the Court, the Army Secretary
detailed that the total area required for the proposed extension was 42,852 acres. He stated
that 32,593 acres of this land was in Maori ownership, with 7904 acres of European land,
and 2355 acres of Crown land. It was noted that the District Valuer had quoted a nominal
value of five shillings an acre. On the basis of this valuation, the Army Secretary
recommended that Cabinet approve the acquisition of the required lands at an estimated
cost of £10,713.
A copy of the Army Secretary’s memorandum was forwarded to the Commissioner of
Works. In a letter written on 22 November 1949, the Commissioner advised the Army
Secretary that he believed that compulsory acquisition under the Public Works Act would
be the most convenient way of securing the land:
it may not be practicable to deal with this matter by negotiation with the Maori owners in
view of he number of blocks and the many owners affected. I think myself that the best
procedure would be to take action to acquire the land under the Public Works Act, 1928, and
leave the assessment of compensation to the Maori Land Court. The Maori owners could, if
necessary, be advised of the proposals through the Department of Maori Affairs.252
The Commissioner suggested that Cabinet approval should be obtained for the acquisition
of the land – both Maori and European – under the provisions of the Public Works Act
1928. The Army Secretary wrote a second memorandum for the Minister of Defence on 30
November 1949, advising him of the Commissioner’s views.253 He stated that, from an
administrative point of view, Army Headquarters supported the use of the Public Works
Act as the most expedient option available. He also noted that the Lands and Survey
Department had stated that it had no objection to the block of Crown land being transferred
to the Army.
251
Army Secretary to Minister of Defence, 8 November 1949, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
252
Commissioner of Works to Army Secretary, 22 November 1949, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
253
Army Secretary to Minister of Defence, 30 November 1949, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
129
A copy of the Army Secretary’s second memorandum for the Minister of Defence was sent
to the Under-Secretary of Maori Affairs. On 13 December 1949, the Under-Secretary wrote
to Minister of Maori Affairs, advising him of the proposed enlargement of Waiouru Camp
and the intention to acquire the land compulsorily.254 The Under-Secretary stated that he
believed that the proposed acquisition should be discussed with the owners before any
action was taken under the Public Works Act. Detailing that the Army wished to acquire 18
Maori blocks with a total of 260 owners, he expressed the opinion that negotiations with
the owners would be appropriate given the large areas of land and large number of owners
involved. (This reasoning contrasted with the view expressed by the Commissioner of
Works, who considered the use of the Public Works Act to be appropriate precisely because
there were so many owners.) The Under-Secretary informed the Minister that, if he agreed,
the matter would again be taken up with Army headquarters.
The Minister concurred with the Under-Secretary, and accordingly, on 12 January 1950, the
Under-Secretary wrote to the Army Secretary, stating that:
before taking any action under the Public Works Act, the proposals should be discussed with
the Maori owners. It may very well be that such a meeting as I have suggested would not
result in agreement but it is felt that less dissatisfaction would be caused if negotiation was at
least attempted before compulsory taking was resorted to.255
The Under-Secretary noted that the Minister of Maori Affairs agreed with this view. A
copy of the letter was sent to the Commissioner of Works, who then discussed the matter in
a letter written to the Army Secretary.256 The Commissioner stated that he had not intended
to take action without holding discussions with the owners, but believed that there was no
option but to acquire the land under the compulsory provisions of the Public Works Act:
I may say that I did not propose to proceed with action under the Public Works Act without
consulting the Maori owners. However, it is apparent that it would be difficult, or impossible
to reach agreement because of the number of owners interested, and ultimately action would
254
Under-Secretary, Maori Affairs, to Minister of Maori Affairs, 13 December 1949, MA 1/75 5/5/68, ANZ
Wellington.
255
Under-Secretary, Maori Affairs, to Army Secretary, 12 January 1959, MA 1/75 5/5/68, ANZ Wellington.
256
Commissioner of Works to Army Secretary, 10 February 1950, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
130
have to be taken under the Public Works Act, and the amount payable would have to be
determined through the medium of the Maori Land Court. My suggestion therefore, was . . .
that the necessary authority for this action be obtained initially from Cabinet.257
The Commissioner of Works stated that he had no objection to the procedure suggested by
the Maori Affairs’ Under-Secretary, and would await Cabinet approval before taking any
further action. On 25 May 1950, the Army Secretary wrote to the Commissioner of Works,
informing him that the Prime Minister’s office had advised that approval had been given for
the additional area of 42,852 acres to be acquired at the estimated cost of £10,713.258 The
Army Secretary requested the Commissioner of Works to arrange for the necessary action
to be taken to secure the land and have it proclaimed a defence reserve.
On 6 June 1950, the Commissioner of Works wrote to the District Engineer, asking that he
meet with the principal owners in accordance with the wishes of the Maori Affairs
Department.259 Though clearly believing that the Public Works Act provided the only
means by which the land could be transferred to the Crown, the Commissioner indicated
that it was desirable that the approval of the owners be secured:
An endeavour should be made to obtain their agreement in general to the proposals and to the
land being acquired under the provisions of the Public Works Act, 1928, leaving the amount
of compensation to be determined by the Maori Land Court. It is not essential that you enter
into any formal agreement with the Maori owners, but it would assist if the principal owners
agreed in writing to the land being taken, and the compensation being assessed by the Maori
Land Court, or alternatively, if the meeting of principal owners passed a resolution to that
effect.260
The Commissioner of Works also instructed the District Engineer to arrange for the
purchase of the European owned lands. It was evidently believed that these lands, not held
in multiple ownership like the Maori blocks, could be acquired by negotiated purchase
without recourse to the Public Works Act.
257
Ibid.
Army Secretary to Commissioner of Works, 25 May 1950, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
259
Commissioner of Works to District Engineer, 6 June 1950, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
258
131
On 11 October 1950, the District Engineer wrote to the Commissioner of Works, advising
him of a meeting that had been held with the principal Maori owners at Tokaanu on 29
September 1950.261 He stated that all the speakers had been averse to the land being taken
by proclamation, but had indicated a willingness to exchange it for Crown land of an equal
value. The District Engineer believed that this request had been inspired by a recent
exchange of land near Tokaanu that had involved the Lands and Survey Department and
Maori owners, as well as an awareness that the Crown possessed considerable areas of land
in the locality. He noted that ‘tentative enquiries’ suggested that there might be Crown land
or prison reserves that could be made available for exchange. However, he believed that a
considerable period of time would be required to arrange such an exchange. The District
Engineer noted that preliminary investigations indicated that the estimated cost of acquiring
the lands would be ‘quite inadequate to cover the compensation’.
On 11 October 1950, the District Engineer also wrote to both the Controller General of
Prisons and the Commissioner of Crown Lands, asking about any lands that might be
suitable for exchange.262 Both responses to this enquiry indicated that no such lands were
available. In a letter written on 1 December 1950, a Justice Department staff member
‘safely’ informed the District Engineer that the Department wished to retain all the areas
known as Hautu and Rangipo Development Farms.263 Similarly, in a letter dated 6 February
1951, the Commissioner of Crown Lands stated that all vacant Crown land in the WaiouruTokaanu area was required for exchange with Maori owners in connection with water
conservation purposes.264
On 27 February 1951, the Land Purchase Officer of the Public Works Department wrote to
the Registrar of the Maori Land Court, advising him that an exchange of lands was
260
Ibid.
District Engineer to Commissioner of Works, 11 October 1950, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
262
District Engineer to Controller General of Prisons, 11 October 1950, W3457/400 50/0; District Engineer to
Commissioner of Crown Lands, 11 October 1950, AATC W3457/400 50/0, ANZ Wellington.
263
Unknown (for Acting Controller General of Prisons) to District Engineer, 1 December 1950, AATC
W3457/400 50/0, ANZ Wellington.
264
Commissioner of Crown Lands to Land Purchase Officer, 6 February 1951, AATC W3457/400 50/0, ANZ
Wellington.
261
132
unlikely.265 He asked the Registrar to ‘suggest a means of overcoming the difficulty in view
of the owners’ attitude’, and questioned whether the Maori Land Board would be agreeable
to the land being acquired compulsorily. Replying on 8 March 1951, the Registrar could
only suggest that further investigations be undertaken into the availability of other Crown
lands suitable for exchange.266 He pointed out that the compulsory acquisition of Maori
land did not require the consent of either the Maori Land Board or the Department of Maori
Affairs. Indicating that an option other than compulsory acquisition should be sought, the
Registrar suggested that the owners would be far from passive if the land was taken under
the Public Works Act:
The Blocks are freehold owned by Maoris as tenants in common and their representatives
have expressed the opinion that they are not agreeable to the taking of the land under the
Public Works Act. The Maoris of the Tuwharetoa tribe are particularly land conscious at the
present time, and any arbitrary dispossession of their rights of ownership would be likely to
have immediate political repercussions.267
On 15 March 1951, the District Engineer wrote again to the Commissioner of Works,
advising him that it was considered unlikely that there would be any Crown land available
for exchange.268 Stating that it appeared ‘that further negotiations with the Maori owners
would be useless’, the District Engineer asked what further action should be taken. He
noted that of the two principal European owners, one had agreed to sell in principle, but
that no reply had been received from the other. On 20 March 1951, the Commissioner of
Works wrote to the Army Secretary, passing on the information provided by the District
Engineer.269 The Commissioner of Works stated that there appeared ‘to be no alternative
but to take action under the compulsory provisions of the Public Works Act, 1928.’ He
advised the Army Secretary that it would be necessary for Army headquarters to obtain
265
Land Purchase Officer to Registrar, Maori Land Court, 27 February 1951, AATC W3457/400 50/0, ANZ
Wellington.
266
Registrar, Maori Land Court, to Land Purchase Officer, 8 March 1951, AATC W3457/400 50/0, ANZ
Wellington.
267
Ibid.
268
District Engineer to Commissioner of Works, 15 March 1951, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
269
Commissioner of Works to Army Secretary, 20 March 1951, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
133
Cabinet approval for such an action. Accordingly, on 18 April 1951, the Army Secretary
prepared a memorandum for the Minister of Defence, recommending that Cabinet approve
the acquisition of all the land required for the extension of the Waiouru training grounds
under the compulsory provision of the Public Works Act.270 Somewhat inaccurately, the
Army Secretary claimed that:
Considerable negotiations have taken place with the Maori owners of the major portion of the
area but it has been found impossible to acquire this land from them by negotiation nor will
they agree to the land being acquired under the provisions of the Public Works Act, 1928,
leaving the matter of compensation to be assessed by the Maori Land Court.271
This statement exaggerated the extent of the discussions that had been held with the Maori
owners, which amounted to just one informal meeting. It also fails to note that the owners
were prepared to negotiate for the required lands to be exchanged for similarly valued
Crown land.
It appears that at this time there was no communication between Army headquarters and the
Department of Maori Affairs regarding the proposed acquisition under the Public Works
Act. The Maori Affairs’ file records that it was not until May 1951 that the Department
learnt of the Tokaanu meeting and of Army Headquarters’ intention to proceed with
compulsory acquisition. On 14 May 1951, a Treasury official spoke of these developments
in a telephone conversation with an unnamed Maori Affairs’ staff member.272 On 21 May
1951, the same staff member noted that it had been decided that the matter should be raised
with the Minister of Maori Affairs.273 The Under-Secretary accordingly prepared a
memorandum for the Minister.274 This memorandum, dated 22 May 1951, outlined all the
developments surrounding the proposed acquisition. The Under-Secretary concurred with
270
Army Secretary to Minister of Defence, 18 April 1951, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
271
Ibid.
272
Note for file (writer unknown), 14 May 1951, MA 1/75 5/5/68, ANZ Wellington.
273
Note for file (writer unknown), 21 May 1951, MA 1/75 5/5/68, ANZ Wellington.
274
Under-Secretary, Maori Affairs, to Minister of Maori Affairs, 22 May 1951, MA 1/75 5/5/68, ANZ
Wellington.
134
the view that there would be procedural and practical difficulties in obtaining a license to
periodically shoot over the land. He identified three possible courses of action:
1.
To make a formal offer to the owners on behalf of the Crown, with later recourse to the Public
Works Act if the offer is refused.
2.
To go further into the possibility of exchange for Crown land elsewhere.
3.
To take the land forthwith under the Public Works Act, and allow compensation to be
assessed in the usual way before the Court.275
The Under-Secretary expressed the opinion that the first option was most favourable. He
noted that no formal offer had been made, and that meetings called to consider any offer
would provide an opportunity to discuss exchange proposals and other ideas.
On 24 July 1951, the Maori Affairs’ Under-Secretary wrote to the Army Secretary,
explaining that the matter of the proposed land acquisition had been considered by the
Minister.276 He stated that some of the Maori owners had had discussions with the Minister
and would be submitting a list of Crown lands that they considered suitable for exchange.
The Army Secretary was unequivocally informed that until this list had been handed in it
was ‘quite clear that no further steps should be taken without some further discussions with
the people.’ It was noted by the Under-Secretary that there was a statutory requirement that
any purchase of Maori land by the Crown had to be approved and carried out by the Board
of Maori Affairs, and that all such requests should be made to the Department of Maori
Affairs. He stated that, in light of the magnitude of the proposed acquisition, all enquiries
should be made to head office, not the district office. It appears that this comment was
made to express disapproval at the meeting of owners held in September 1950 having been
arranged through the Wanganui office.
A representative of the Maori owners, J A Asher, wrote to the Minister of Maori Affairs on
16 July 1951, raising the issue of land exchange.277 Asher did not dismiss the need for the
275
Ibid.
Under-Secretary, Maori Affairs, to Army Secretary, 24 July 1951, MA 1/75 5/5/68, ANZ Wellington.
277
Asher to Minister of Maori Affairs, 16 July 1951, MA 1/75 5/5/68, ANZ Wellington.
276
135
Army lands to be extended, but clearly believed that it would be inappropriate for the lands
to be acquired compulsorily under the Public Works Act:
Whilst the Maori owners in their ever ready patriotism of King and Country fully appreciate
any recommendation for the possible extension of the Waiouru Military Camp which in turn
must absorb some of their adjacent titles, there is at the same time no need to invoke already
outdated methods of the dim past to achieve this end.278
Asher suggested that a meeting to discuss land exchange should be held between the
owners’ representatives and the relevant government departments. He asserted that the
Maori lands possessed an economic potential that deserved to be recognised, and asked the
Minister to protect the owners from compulsory acquisition:
By mutual examination of local plans for the district, this will readily disclose amply Crown
lands that could be made available to meet the more democratic procedure of ‘equality’.
The Maori lands required for military purposes whilst not wholly regarded as suitable for
farming purposes, can on the other hand be applied as excellent areas for afforestation
similarly to those Karioi exotic timber . . . lands adjacent and nearing maturity.
I shall be pleased to have your undertaking that anything approaching unfair treatment of that
resembling any form of compulsion on the Maori will not be tolerated, and that more
amicable measures will be made in providing a suitable solution along . . . for some equitable
exchanges with the Crown who yet hold considerable areas of land in the Tuwharetoa district
capable of being eventually utilised . . . for land development generally.279
Replying to Asher, the Minister offered reassurances that no proclamations would be issued
over the blocks without first negotiating with the Maori owners.280 He also stated that he
would be pleased to be present at the requested meeting. The Minister instructed the UnderSecretary to make arrangements for the meeting.281
278
Ibid.
Ibid.
280
Minister of Maori Affairs to Asher, 20 July 1951, MA 1/75 5/5/68, ANZ Wellington.
281
Minister of Maori Affairs to Under-Secretary, Maori Affairs, 20 July 1951, on Minister of Maori Affairs to
Asher, 20 July 1951, MA 1/75 5/5/68, ANZ Wellington.
279
136
In spite of enquiries made by Army Headquarters to the Maori Affairs Department,
progress with negotiations stalled.282 This appears to largely have been a result of the time
that Asher required to establish what Crown lands might be suitable for exchange. The
Under-Secretary unsuccessfully requested information from Asher in December 1951,
February 1952, and March 1952.283 On 6 May 1952, Asher wrote to the Under-Secretary,
asking for details of available Crown lands.284 Having been asked to provide this
information, the Director General of Lands commented on the exchange proposal in a letter
written to the Under-Secretary of Maori Affairs on 11 June 1952.285 Reiterating the position
stated earlier, he indicated that there was little suitable land available:
Most of the Crown lands in this locality are set apart for specific purposes such as State
Forest, National Park and Defence and are required for those purposes. Presumably, the
Maoris would desire to receive in exchange areas of farmable lands but it is very doubtful
whether the Land Settlement Board would agree to any areas suitable for development being
used for exchange purposes and in any case it is very doubtful whether there are any large
tracts of land in the locality which could be classified in this way.286
On 20 June 1952, the Under-Secretary informed Asher of the Director-General’s views, and
emphasised that the acquisition of the lands was ‘a matter of national importance and . . .
will have to be brought to a head very soon.’287 He stated that if the owners intended to sell
the land – in the event of there being no Crown land available for exchange – an offer
should be made at the earliest possible stage. In July and August 1952, the Under-Secretary
unsuccessfully pressed Asher to submit details of an exchange proposal or sale offer.288 On
31 August 1952, the Under-Secretary advised Asher that, without a reply from him, Army
282
Army Secretary to Under-Secretary, Maori Affairs, 4 December 1951, MA 1/75 5/5/68, ANZ Wellington.
Under-Secretary, Maori Affairs, to Asher, 20 December 1951, MA 1/75 5/5/68; Under-Secretary, Maori
Affairs, to Asher, 28 February 1951, MA 1/75 5/5/68, ANZ Wellington; Under-Secretary, Maori Affairs, to
Asher, 24 March 1951, MA 1/75 5/5/68, ANZ Wellington.
284
Asher to Under-Secretary, 6 May 1952, MA 1/75 5/5/68, ANZ Wellington.
285
Director-General of Lands to Under-Secretary, Maori Affairs, 11 June 1952, MA 1/75 5/5/68, ANZ
Wellington.
286
Ibid.
287
Under-Secretary to Asher, 20 June 1952, MA 1/75 5/5/68, ANZ Wellington.
288
Under-Secretary, Maori Affairs, to Asher, 31 July 1952, MA 1/75 5/5/68, ANZ Wellington; UnderSecretary, Maori Affairs, to Asher, 29 August 1952, MA 1/75 5/5/68, ANZ Wellington.
283
137
Headquarters would be advised to secure the land by whatever means was necessary.289 In
the meantime, on 8 July 1952, the Army Secretary had written to the Commissioner of
Works, asking if any progress had been made with the acquisition of the additional land for
Waiouru Camp.
290
In reply, the Commissioner of Works stated that no further action had
been taken by the Ministry of Works, and nor would such action be possible until Cabinet
approval had been obtained. He stated that the Maori Affairs Department might have made
progress, but was unaware if this was the case.291
On 15 September 1952, the Under-Secretary of Maori Affairs wrote to the Commissioner
of Works, advising him that ‘numerous efforts’ to secure a proposal from the owners had
produced no result.292 Noting the length of time over which the matter had been drawn out,
the Under-Secretary stated that the best course of action would be for the Ministry of
Works to prepare a formal offer for the purchase of the land. The Under-Secretary
explained that such an offer should be made to his Department, which would arrange the
necessary meeting of owners. He stated that the outcome of that meeting would determine
what further steps would be taken.
Asher finally provided details of the Crown lands that he thought would be suitable for
exchange in a letter written to the Under-Secretary of Maori Affairs on 23 September
1952.293 He claimed that there were significant areas available, and stated that an exchange
would be ‘consistent with the large exchanges previously made with the Maori owners’.
(The previous exchanges mentioned by Asher might have been those that had earlier been
referred to by the District Engineer, which concerned land around Tokaanu. These
exchanges, apparently involving large areas, were carried out in about 1944.294) Asher
listed ‘a few of the open fern and tussock areas’ that he thought would be suitable: Parts
289
Under-Secretary, Maori Affairs, to Asher, 29 August 1952, MA 1/75 5/5/68, ANZ Wellington.
Army Secretary to Commissioner of Works, 8 July 1952, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
291
Commissioner of Works to Army Secretary, 16 July 1952, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
292
Under-Secretary, Maori Affairs, to Commissioner of Works, 15 September 1952, MA 1/75 5/5/68, ANZ
Wellington.
293
Asher to Under-Secretary, Maori Affairs, 23 September 1952, MA 1/75 5/5/68, ANZ Wellington.
294
Director General of Lands to Under-Secretary, Maori Affairs, 11 November 1952, MA 1/75 5/5/68, ANZ
Wellington.
290
138
Hauhungaroa 3, Opawa Rangitoto 1, Hautu 2, Hautu 4, Rangipo North, and Tihoi. He
stated that his suggestion for exchange was made ‘as a move to commence negotiations’.
Upon receiving Asher’s letter, the Under-Secretary wrote to both the Director General of
Lands and the Commissioner of Works, enclosing copies of the letter. The Director General
of Lands was asked to comment on the list of lands thought by Asher to be suitable for
exchange.295 It was also noted that the Ministry of Works had been asked to prepare a
purchase offer, and that this process would remain in place in case nothing came of the
exchange proposal. In his letter to the Commissioner of Works, the Under-Secretary
advised that moves towards making an offer of purchase should proceed.296 He asked that
special government valuations be obtained, explaining that these valuations had to be
shown on the formal offer that the Minister of Maori Affairs was required to sign.
On 3 October 1952, the Director General of Lands wrote to the Under-Secretary of Maori
Affairs, acknowledging the letter of 30 September 1930.297 He stated that a report on the
lands identified by Asher would be provided, but emphasised that it was ‘very doubtful’
that the Land Settlement Board would agree to the exchange of any areas suitable for
development. In letters written on 11 November 1952 and 28 November 1952, the Director
General of Lands explained that none of the lands identified by Asher would be made
available for exchange.298 He detailed the Crown’s interests in the various lands, and
indicated why it was thought that they should remain in Crown ownership:
Parts Hauhungaroa 3 (2403 acres and 2648 acres)
These land appears to have been located on the western side of Lake Taupo. It was thought
that they should be retained because they might ‘prove invaluable for consolidating the
295
Under-Secretary, Maori Affairs, to Director General of Lands, 30 September 1952, MA 1/75 5/5/68, ANZ
Wellington.
296
Under-Secretary, Maori Affairs, to Commissioner of Works, 30 September 1952, MA 1/75 5/5/68, ANZ
Wellington.
297
Director General of Lands to Under-Secretary, Maori Affairs, 3 October 1952, MA 1/75 5/5/68, ANZ
Wellington.
298
Director General of Lands to Under-Secretary, Maori Affairs, 11 November 1952, MA 1/75 5/5/68, ANZ
Wellington; Director General of Lands to Under-Secretary, Maori Affairs, 28 November 1952, MA 1/75
5/5/68, ANZ Wellington.
139
Crown interests in that area and for exchanges for boundary adjustments.’ The Crown, it
was explained, possessed extensive interests in certain lands in this area, namely in the
Tihoi and Waihaha blocks.
Opawa Rangitoto 1 (3011 acres)
It was stated that portions of this block had been earlier been disposed of in ‘the big series
of exchanges’ around Tokaanu. The remaining area included some flat land along the main
highway, but it was thought that this land ‘should be retained for provision of amenities
such as camping areas, access to Lake Taupo, and for subdivision into sections suitable for
holiday residences.’ The balance of the block was stated to be very steep and broken, and it
was therefore considered that it would be unlikely that it would be useful for farming
purposes if given to Maori as an exchange. It was felt that this land, part of the Taupo
watershed, would be best left to regenerate as a water and climatic conservation area.
Hautu 2 and 4
Crown interests in these blocks were stated to be extensive. It was explained that the bush
areas were ‘all required for administration by the Forest Service under the Forests Act,
1949, and the open areas are used and required for the Hautu Prison Farm.’
Rangipo North
It was explained that any Rangipo North land owned by the Crown and not included in the
Tongariro National Park was used for the Rangipo Prison Farm.
Tihoi
A small portion of this block, it was stated, was being developed by the Department of
Lands and Survey as an extension to the Maraetai Farm Settlement. It was explained that
the balance of the block was being used by the Army for training purposes, but would be
developed for farming purposes after about ten years.
140
In light of the above lands having been deemed unavailable for purchase, the Director
General of Lands advised the Maori Affairs Under-Secretary that it would be necessary to
attempt to acquire the additional defence lands by purchase.
Steps were then undertaken to acquire the land by purchase. On 21 January 1953, the
Commissioner of Works wrote to the Army Secretary, forwarding a list of special
government valuations, and requesting that approval be sought to enable a formal offer to
be made to the Maori owners.299 Accordingly, on 4 February 1953, the Army Secretary
prepared a further memorandum for the Minister of Defence, recommending that approval
be given to the purchase of 42,852 acres at a cost of £14,040.300 The Under-Secretary
explained that the Department of Maori Affairs asked that a formal offer be made to the
owners. He stated that since May 1950, when Cabinet had approved the expenditure of
£10,713, the value of the required land had increased from five shillings an acre to
approximately seven shillings an acre. The Army Secretary noted that the purchase would
be a charge on Vote Defence. It was again stressed that full and permanent control over the
land was desirable:
The training requirements of Waiouru Camp more and more show that there is a necessity to
have complete control of a suitably sized area of land on which projectiles fired from any of
the weapons the Army trains with may land. It is very unsatisfactory to have to obtain
permission for shooting with the larger weapons every time a practice shoot takes place. It is
not always possible to co-relate the times of shooting with times when no persons are working
on the land. If the full benefit of Waiouru is to be obtained, it is very desirable that this
purchase be proceeded with.301
On 10 March 1953, Cabinet approved in principle the purchase by negotiation of the
required land at the estimated cost of £14,040. It also directed that, if a greater amount of
money was required to complete the purchase, the interested Departments should inform
299
Commissioner of Works to Army Secretary, 21 January 1953, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
300
Army Secretary to Minister of Defence, 4 February 1953, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
301
Ibid.
141
the Minister of Defence as to how the purchase would be finalised.302 The Commissioner of
Works wrote to the Under-Secretary of Maori Affairs on 25 March 1953, enclosing the
valuation details, and asking that formal offers be made to the owners in accordance with
the valuations provided.303 He noted that Army Headquarters requested that urgency be
given to the matter because of the training limitations of the existing defence lands.
Between March 1953 and late 1957, the Department of Maori Affairs unsuccessfully
sought to arrange for the required Maori land to be purchased by agreement. When this
course of action was finally abandoned, it was decided that taking under the Public Works
Act provided the only means of securing the land. The main obstacle to negotiated purchase
was the difficulties caused by the lands being held in multiple ownership. The organisation
of meetings of owners was problematic because the small individual interests held by many
owners often meant that the cost of attending meetings was seen to be unjustified. This was
especially the case for the large number of owners who lived outside the district.
In its endeavour to organise the purchase of the Maori land, the Maori Affairs Department
initially set about dealing with certain title matters. The status of Oruamatua Kaimanawa
2E was clarified, with the Registrar of the Court in Wanganui confirming that the owners
were European.304 The ownership of Oruamatua Kaimanawa 2B1 and 2Q1 was also
addressed. Writing to the Wanganui district office on 20 July 1953, the Secretary of Maori
Affairs explained that these blocks had been conveyed to two European trustees under
Section 3 of the Maori Land Laws Amendment Act 1897.305 He noted that both trustees
were dead, and asked whether it would be appropriate for this land to be taken under the
Public Works Act. In reply, the Registrar of the Court suggested that the trust be terminated
and the land vested in the beneficial owners, enabling the blocks to be purchased.306 The
Secretary of Maori Affairs agreed with this course of action, and asked that steps be taken
302
Secretary of Cabinet to Minister of Defence, 10 March 1953, MA 1/75 5/5/68, ANZ Wellington.
Commissioner of Works to Under-Secretary, Maori Affairs, 25 March 1953, MA 1/75 5/5/68, ANZ
Wellington.
304
Registrar, Maori Land Court, to Head Office, Wellington, 29 July 1953, MA 1/75 5/5/68, ANZ
Wellington.
305
Secretary, Maori Affairs, to District Officer, Wanganui, 20 July 1953, MA 1/75 5/5/68, ANZ Wellington.
306
Registrar, Maori Land Court, to Head Office, Wellington, 29 July 1953, MA 1/75 5/5/68, ANZ
Wellington.
303
142
for the appropriate application to be made to the Court.307 The vesting process proved to be
very time consuming, delaying any action towards initiating purchase negotiations. On 13
April 1954, the District Officer advised that the beneficial owners had signed applications
under Section 444 of the Maori Affairs Act 1953.308 However, it was not until 1955 that the
cases came before the Court: the ownership of 2Q1 was vested in one individual on 15
January 1955, while the 2B1 was vested in seven individuals on 15 July 1955.309 On 22
July 1955, the District Officer advised Head Office of the vesting orders, but noted that one
of the owners had recently died, requiring the appointment of a successor.310 (This
individual was the sole owner of 2Q1, and also held a half share in 2B1.)
The Secretary of Maori Affairs informed the Commissioner of Works of these
developments in a letter written on 1 August 1955.311 In reply, the Commissioner advised
that Army Headquarters was ‘pressing for some finality in this long outstanding matter’.312
He asked that formal offers be made to the owners as soon as possible. On 23 March 1956,
the Maori Affairs Secretary wrote again to the Commissioner of Works, stating that there
was no question of holding meetings of owners to consider the sale of Oruamatua
Kaimanawa 2B1 and 2Q1.313 He did not mention the possibility of proceeding with the
arrangements for the other blocks, apparently believing that it would be easiest to deal with
all of the blocks at the same time. In response, the Commissioner of Works suggested that
meetings be held as soon as possible.314 He stated that, where it was impossible to arrange a
meeting of owners or to reach an agreement on price, the question of compulsory
acquisition would have to be considered. He also thought that dealing with blocks in a
piece-meal fashion, instead of as a whole, should be avoided.
307
Secretary, Maori Affairs, to District Officer, Wanganui, 11 August 1953, MA 1/75 5/5/68, ANZ
Wellington.
308
District Officer, Wanganui, to Head Office, Wellington, 13 April 1954, MA 1/75 5/5/68, ANZ Wellington.
309
Extract from Wanganui minute book 113, pp 163-165, MA 1/75 5/5/68, ANZ Wellington; extract from
Wanganui minute book 114, pp 335-338, MA 1/75 5/5/68, ANZ Wellington.
310
District Officer, Wanganui, to Head Office, Wellington, 22 July 1955, MA 1/75 5/5/68, ANZ Wellington.
311
Secretary, Maori Affairs, to Commissioner of Works, 1 August 1955, MA 1/75 5/5/68, ANZ Wellington.
312
Commissioner of Works to Secretary, Maori Affairs, 27 February 1956, MA 1/75 5/5/68, ANZ
Wellington.
313
Secretary, Maori Affairs, to Commissioner of Works, 23 March 1956, MA 1/75 5/5/68, ANZ Wellington.
314
Commissioner of Works to Secretary, Maori Affairs, 1 May 1956, MA 1/75 5/5/68, ANZ Wellington.
143
On 4 May 1956, the District Officer wrote to Head Office, advising that successors had
been appointed to the deceased owner of Oruamatua Kaimanawa 2B1 and 2Q1.315 The
approval of the Board of Maori Affairs was then secured under Section 252 of the Maori
Affairs Act, enabling the Crown’s purchase of the Maori lands to proceed.316 The
recommendation to the Board detailed that the price was to be not less than seven shillings
an acre or the amount of a special government valuation. It was noted that the purchase of
the land had been approved by Cabinet, and that there were approximately 260 owners. An
attached schedule detailed the areas and values of the required Maori blocks.
The Secretary of Maori Affairs wrote to the District Officer on 17 January 1957, advising
that the purchase of the required Maori lands had been approved by the Board of Maori
Affairs.317 He enclosed a schedule of the lands, and indicated that the easiest way to
undertake negotiations would be by way of a meeting of owners. The Secretary asked to be
advised of those blocks for which a quorum could be obtained. Replying on 1 February
1957, the District Officer listed 11 blocks for which he believed a quorum could be secured
at a meeting of owners.318 On 22 February 1957, the Secretary wrote again, asking about
the remaining blocks, and pointing out that – from the lists provided in 1951 – some of the
blocks might have too few owners for a meeting to be called.319 On 3 July 1957, the
Secretary advised the Commissioner of Works that no further progress had been made.320
He explaining that the District Officer was assembling information for meetings to be held,
but was experiencing considerable difficulty in tracing those owners who remained alive
and were likely to attend a meeting.
On 13 November 1957, the Assistant District Officer reported on progress towards
purchase negotiations.321 He stated that quorums could be obtained for all except three of
315
District Officer, Wanganui, to Head Office, Wellington, 4 May 1956, MA 1/75 5/5/68, ANZ Wellington.
Recommendation for the Board of Maori Affairs, MA 1/75 5/5/68, ANZ Wellington.
317
Secretary, Maori Affairs, to District Officer, Wanganui, 17 January 1957, MA 1/75 5/5/68, ANZ
Wellington.
318
District Officer to Head Office, 1 February 1957, MA 1/75 5/5/68, ANZ Wellington.
319
Secretary, Maori Affairs to District Officer, Wanganui, 22 February 1957, MA 1/75 5/5/68, ANZ
Wellington.
320
Secretary, Maori Affairs to Commissioner of Works, 3 July 1957, MA 1/75 5/5/68, ANZ Wellington.
321
Assistant District Officer, Wanganui, to Head Office, 13 November 1957, MA 1/75 5/5/68, ANZ
Wellington.
316
144
the required blocks: Rangipo Waiu 2B1A, 2B1B, and 2B1C.322 He noted that the owners of
two blocks had already given their consent to the land being purchased, but that these offers
had been found to be unacceptable. (The owners expected the Crown to meet the rates
arrears, a suggestion that had been rejected by the Public Works Department.323) The
Assistant District Officer stated that discreet enquiries suggested that, if specific resolutions
could not be obtained, it would at least be possible to get an indication of what would be
acceptable to the general body of owners. However, he also explained that:
on the other hand the opinion was expressed that the expenses involved in attending meetings
could be out of all proportion to the value at stake and for that reason some favoured the lands
being taken by Proclamation leaving it to the Court to protect the interests of the owners on
assessment of compensation. It is probable that the owners as a whole would in such a case
instruct Counsel to act of their behalf. If, however, notice of intention to take was gazetted it
would be an easy matter for extracts to be sent to those with known addresses. It may be that
few objections would be received but in any case objections would give some indication as to
what was in the minds of the owners.324
The Assistant District Officer stated that the owners were ‘scattered all over New Zealand’,
and claimed that over the years they had generally ‘evinced little, if any, interest in these
lands’.
On 22 November 1957, the Secretary of Maori Affairs wrote to the Commissioner of
Works, advising him of the contents of the Assistant District Officer’s report.325 In light of
this information, and given that there was a reluctance to deal with the blocks in a piecemeal fashion, the Secretary stated that the Public Works Department should proceed to take
the land under the Public Works Act and have compensation determined by the Maori Land
Court. The Secretary explained that he had come to this decision reluctantly, stating that it
was ‘contrary to normal Government policy’. On 3 December 1957, the Commissioner of
322
A fourth block, Part Kaimanawa 3B1, was noted to be in Crown ownership.
Commissioner of Works to Secretary, Maori Affairs, 28 January 1957, MA 1/75 5/5/68, ANZ Wellington.
324
Ibid.
325
Secretary, Maori Affairs, to Commissioner of Works, 22 November 1957, MA 1/75 5/5/68, ANZ
Wellington.
323
145
Works wrote to the Army Secretary, enclosing a copy of the Secretary’s letter.326 He stated
that he supported the Secretary of Maori Affairs view, asserting that: ‘It is quite evident that
there is no hope of securing this land by negotiation and . . . the only method by which the
Crown can secure it is to take the land under the provisions of the Public Works Act 1928.’
The Commissioner of Works stated that the European lands should similarly be taken by
proclamation. He asked the Army Secretary to proceed to obtain Cabinet approval for the
taking.
For reasons that are unclear, it was not until October 1958 that the Army Secretary prepared
a memorandum for the Minister of Defence recommending that Cabinet approval be sought
for compulsory acquisition under the Public Works Act.327 The memorandum explained the
background to the taking and the difficulties associated with negotiated purchase. A copy of
the memorandum was forwarded to the Minister of Maori Affairs, who was requested by
the Minister of Defence to comment on the proposal.328 The Secretary of Maori Affairs
provided the Minister with the following details of the required Maori lands:329
On 24 November 1958, J A Asher, who had earlier represented the Maori owners, wrote to
the Secretary of Maori Affairs, enquiring whether the Crown still wished to secure the
lands for defence purposes.330 Asher stated that the negotiations he had had with Army
Headquarters had been abruptly terminated, even though the Army ‘continually used much
of our lands’. In reply, the Secretary informed Asher that Army Headquarters was still
interested in securing the lands.331 Referring to the exchange proposal that had been
suggested by Asher, the Secretary advised that no Crown lands were available for this
purpose.
326
Commissioner of Works to Army Secretary, 3 December 1957, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
327
Army Secretary to Minister of Defence, 15 October 1958, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
328
Minister of Defence to Minister of Maori Affairs, 1 December 1958, MA 1/75 5/5/68, ANZ Wellington.
329
Secretary, Maori Affairs to Minister of Maori Affairs, 30 October 1958, MA 1/75 5/5/68, ANZ
Wellington. The list has been corrected from details provided when the Maori Land Court later assessed
compensation.
330
Asher to Secretary, Maori Affairs, 3 November 1958, MA 1/75 5/5/68, ANZ Wellington.
331
Secretary, Maori Affairs, to Asher, 24 November 1958, MA 1/75 5/5/68, ANZ Wellington.
146
On 11 March 1959, the Liaison Officer from the Minister of Maori Affairs’ office provided
the Minister with a memorandum on the proposed taking under the Public Works Act.332
He informed the Minister that the lands were ‘definitely’ unsuitable for farming by
individual owners, but indicated that the areas of lowest altitude might be developed for
forestry purposes. In spite of this potential, the Liaison Officer believed that the lands
would never be developed, and therefore thought that it was ‘in the interest of the owners to
dispose of the land to the Army for military training purposes.’ It seems that he believed
that any development would be difficult because of the large number of owners. The
Liaison Officer noted that if successors were appointed to all of the deceased owners the
number would be near 500. He detailed the problems associated with calling meetings of
owners for each of the subdivisions, explaining that many owners held interests that were
too small to justify the cost of attendance. In light of this, he agreed that the Public Works
Act provided ‘the only practical way’ by which the Crown could secure the land. He
thought that the notice of intention to take should be given the widest possible publicity.
The Liaison Officer noted that a suggestion had been made that compensation should be
paid in land, instead of money. He believed this idea to have merit, pointing out that the
Maori population was growing and that the loss of the lands in question, even though
economically marginal, would nevertheless reduce the total area of land held by Maori. He
recommended that the taking proceed under the Public Works Act, but at the same time
thought that investigations should be made into the possibility of providing the owners with
suitable Crown lands. He stated that any land in the vicinity of Lake Taupo that could be
used for the settlement of individual Maori farmers might be suitable.
The Minister of Maori Affairs, Walter Nash, agreed with this recommendation. The Army
Secretary and Minister of Defence were accordingly advised of Nash’s position on the
matter.333 Stressing that adequate notice should be given to the owners, Nash informed the
Minister of Defence that it was ‘always a very sore point with Maori owners to find that
without notice their lands have been proclaimed for some Government purpose.’ On 13
332
Liaison Officer to Minister of Maori Affairs, 11 March 1959, MA 1/75 5/5/68, ANZ Wellington.
Minister of Maori Affairs, 21 March 1959, note on Liaison Officer to Minister of Maori Affairs, 11 March
1959, MA 1/75 5/5/68, ANZ Wellington; Minister of Maori Affairs to Minister of Defence, 3 April 1959, MA
1/75 5/5/68; Secretary, Maori Affairs, to Army Secretary, 15 April 1959, MA 1/75 5/5/68, ANZ Wellington.
333
147
May 1959, the Army Secretary wrote to the Minister of Maori Affairs, advising that the
Commissioner of Works had been asked to proceed with the issuing of a notice of intention
to take.334 As to the question of providing the Maori owners with other lands, the Army
Secretary thought that such an outcome was unlikely. On 22 July 1959, this view was
confirmed in a letter written to the Minister of Maori Affairs by C F Skinner of the office of
the Minister of Lands.335 Skinner stated that it was ‘not a practicable proposition to provide
farmable Crown land in exchange for unfarmable Crown land.’ He informed the Minister
that a recent land utilisation survey had revealed that, in the Taupo-Rotorua region, Maori
possessed considerably more undeveloped farmable land than the Crown. Skinner
explained that the Government, through the Land Settlement Board, wished to provide the
maximum number of farms for new settlement, and was having to purchase land to achieve
this. It was explained that first option on these lands lay with ex-servicemen, followed by
civilian farmers.
On 30 July 1959, the Minister of Maori Affairs wrote to the Minister of Defence, advising
that an exchange of land could not be implemented. He stated that the taking should
proceed as directed, with the notice of intention to take being given the widest possible
publicity.336 The Army Secretary was advised that there would be no exchange of land in a
letter written by the Secretary of Maori Affairs on 4 August 1959.337 The Army Secretary
was also informed that that Minister of Maori Affairs had expressed the wish that the
application for assessment of compensation be filed with the Maori Land Court as soon as
the proclamation had been issued, ensuring that the owners would receive the money
without delay.
3.6 The 1961 Taking
The issuing of the proclamation under the Public Works Act did not proceed quickly. On 2
May 1960, the Commissioner of Works wrote to the District Commissioner of Works,
334
Army Secretary to Secretary, Maori Affairs, 13 May 1959, MA 1/75 5/5/68, ANZ Wellington.
Skinner to Minister of Maori Affairs, 22 July 1959, MA 1/75 5/5/68, ANZ Wellington.
336
Minister of Maori Affairs to Minister of Defence, 30 July 1959, MA 1/75 5/5/68, ANZ Wellington.
337
Secretary, Maori Affairs, to Army Secretary, 4 August 1959, MA 1/75 5/5/68, ANZ Wellington.
335
148
informing him that the notice of intention to take should be prepared in the Wanganui
office.338 He advised that details of the addresses and holdings of the Maori owners would
have to be searched in the Maori Affairs office in Wanganui. The Commissioner of Works
enclosed plans and area schedules for the lands that would be taken. On 6 May 1960, the
District Commissioner of Works wrote to the District Officer of the Department of Maori
Affairs, requesting the names and addresses of owners.339 He explained that the Minister of
Maori Affairs had directed that the notice of intention to take should be given the widest
possible publicity. Noting that the Public Works Act did not require notice to be given for
defence takings, the District Commissioner stated that the Minister believed that such
notice would be ‘diplomatic’.
A notice of intention to take the lands required for defence purposes at Waiouru was signed
by the Minister of Works on 19 July 1960.340 The notice detailed that the land was to be
taken under the provisions of the Public Works Act 1928. It also stated that plans of the
required were land were available for inspection at the Waiouru post office, and that all
objections were to be made in writing to the Minister of Works within 40 days of the
publication of the notice. On 17 August 1960, the Commissioner of Works wrote to the
advertising office of the Government Tourist and Publicity Department, requesting that
copies of the notice be printed in local papers.341 Copies of the notice were posted to 112
Maori owners, all of those whose addresses were known.342 (The schedules of owners’
names and addresses that were provided by the Maori Affairs Department showed that a
large number of owners were deceased and without successors, and also that the addresses
of the many of the living owners were unknown.343) Notices were also sent to the owners of
the two blocks that were held by Europeans.344
338
Commissioner of Works to District Commissioner of Works, 2 May 1960, AATC W3457/400 50/0, ANZ
Wellington.
339
District Commissioner of Works to District Officer, 6 May 1960, AATC W3457/400 50/0, ANZ
Wellington.
340
New Zealand Gazette, 1960, no. 49, p 1166.
341
Commissioner of Works to clerk in charge, Government Tourist and Publicity Department, 17 August
1960, AAQB W3950/104 23/406/1 part 2, Waiouru military camp, 1958-1973, ANZ Wellington.
342
District Commissioner of Works to District Officer, 8 September 1960, AAQB W3950/104 23/406/1 part
2; list of posted notices of intention to take, AAQB W3950/104 23/406/1 part 2, ANZ Wellington.
343
Schedules of owners’ details, AAQB W3950/104 23/406/1 part 2, ANZ Wellington.
344
List of posted notices of intention to take, AAQB W3950/104 23/406/1 part 2, ANZ Wellington.
149
Only one owner made a formal objection to the proposed taking. On 29 September 1960,
the Taihape manager of Dalgety and Company wrote to the Minister of Defence on behalf
of Rini Williams (Rini Henare Whale) of Mataroa, who owned almost half of the interests
held in Oruamatua Kaimanawa 3F.345 He stated that Williams considered the land to
possess potential for farming. It was asserted that the land, described as ‘easy rolling
country’, was capable of carrying at least one ewe to the acre. Responding to this letter, the
Minister of Works advised that the objection, though sympathetically considered, was ‘not
well grounded in terms of the Public Works Act, 1928’. He explained that: ‘Waiouru is the
only area in New Zealand that the Army has where it is able to fire its major weapons, and
extra land is required to enable these weapons to be fired and all safety precautions
observed.’ It was noted that all owners would be entitled to compensation.
On 25 January 1961, the District Commissioner of Works wrote to the Commissioner of
Works, recommending the signing of an enclosed proclamation that had been prepared for
the taking of the additional defence lands.346 Noting that much of the land was Maori
owned, the District Commissioner stated that:
It is of relatively low value and the owners have little interest in it. The Department has been
endeavouring since 1950 to purchase the land on behalf of Army Department, but little
progress has been made because of the impossibility of arranging meetings of the assembled
owners and the fact that the expense of the owners attending such meetings would be out of
all proportion to the value of their interests in the land.347
The District Commissioner also stated that notification of the intention to take had been
given at the request of the Minister. He advised that one objection had been submitted, but
that this had been dismissed as poorly grounded. It was noted that the acquisition of the
lands had been approved by Cabinet on 10 March 1853.
345
Manager, Dalgety and Company Limited, to Minister of Defence, 29 September 1960, AAQB W3950/104
23/406/1 part 2, ANZ Wellington; schedule of owners’ details for Oruamatua Kaimanawa 3F, AAQB
W3950/104 23/406/1 part 2, ANZ Wellington.
346
District Commissioner of Works to Commissioner of Works, 25 January 1961, AAQB W3950/104
23/406/1 part 2, ANZ Wellington.
347
Ibid.
150
The proclamation was signed by the Governor-General on 7 February 1961.348 The total
area of land acquired for the extension of Waiouru training ground was 39,551 acres 3
roods 8 perches. This figure included 2355 acres of Crown land, Kaimanawa 3B1. The total
area of taken Maori land was 29,167 acres 1 rood 8 perches:
Block
Rangipo Waiu 2B1A
Rangipo Waiu 2B1B
Rangipo Waiu 2B1C
Rangipo Waiu 2B1D
Rangipo Waiu 2B1E
Rangipo Waiu 2B2
Rangipo Waiu 2B3
Rangipo Waiu 2B4
Oruamatua Kaimanawa 2A
Oruamatua Kaimanawa 2B1
Oruamatua Kaimanawa 2B2
Oruamatua Kaimanawa 2C1
Oruamatua Kaimanawa 2O
Oruamatua Kaimanawa 2Q1
Oruamatua Kaimanawa 2Q2
Oruamatua Kaimanawa 3A, 3C,
3D, 3E, and 3F
Total
Area
332a 1r 08p
332a 1r 08p
498a 1r 31p
762a 0r 31p
379a 2r 36p
996a 0r 21p
1107a 3r 18p
664a 1r 15p
2712a 2r 00p
3000a 0r 00p
3080a 0r 00p
1570a 0r 00p
1695a 2r 00p
1516a 0r 00p
200a 0r 00p
10,320a 0r 00p
29,167a 1r 08p
As noted earlier, only the Rangipo Waiu lands lie within the Whanganui inquiry district, an
area of 5073 acres 1 rood 8 perches. The following European owned lands were also taken:
Oruamatua Kaimanawa 3B (6334 acres) and Oruamatua Kaimanawa 2P (1695 acres 2
roods).
3.7 Compensation for the 1961 Taking
The Maori Land Court assessed compensation for the taken Maori lands at a hearing held in
Wanganui on 6 October 1961.349 Notice of the hearing had been sent to all owners whose
addresses were known.350 The application was presented to the Court by J E Harris, the
348
New Zealand Gazette, 1961, no. 14, pp 315-316. The proclamation notice included an error, corrected by a
later erratum notice, New Zealand Gazette, 1961, no. 21, p 445.
349
Wanganui minute book 125, 6 October 1961, pp 232-234.
350
Land Purchase Officer to Judge, Maori Land Court, 6 October 1961, AAQB W3950/104 23/406/1 part 2,
ANZ Wellington.
151
Ministry of Works’ Land Purchase Officer. Harris asked the Court to award compensation
in line with values recently assessed by special government valuation. He also spoke of a
letter received from J A Asher, which has not been located. The Court heard from three
owners: Te Harawira Downs, Hukutioterangi Whakatihi, and Henry Hartley. Each of these
owners stated that they had not visited the blocks in which they possessed interests. Hartley
thought that Oruamatua Kaimanawa might be worth £1 an acre, but admitted to having ‘no
evidence of value.’
The Court then heard from L N Fletcher, the District Government Valuer. Fletcher stated
that most of the land was generally ‘high tussock country with no physical access.’ He
acknowledged that the land had been improved by stocking, but noted that the greater part
had never been leased. Fletcher told the Court that there had been two recent purchases,
which his values reflected. He stated that he had determined the land to possess the
minimum possible value given for land, 2s 6d an acre. This value was increased in cases
where the land had been grazed. The values determined by Fletcher were, in some case,
slightly greater than those of the special government valuation that had been carried out in
1953.351
Noting that no alternative valuations had been provided, the Court awarded compensation
in accordance with the special government valuations, accepting these to be ‘fair valuations
of the interests of the owners’:
Block
Rangipo Waiu 2B1A
Rangipo Waiu 2B1B
Rangipo Waiu 2B1C
Rangipo Waiu 2B1D
Rangipo Waiu 2B1E
Rangipo Waiu 2B2
Rangipo Waiu 2B3
Rangipo Waiu 2B4
Oruamatua Kaimanawa 2A
Oruamatua Kaimanawa 2B1
Oruamatua Kaimanawa 2B2
351
Compensation (£)
45
40
65
95
50
125
140
80
360
1200
400
Commissioner of Works to Army Secretary, 21 January 1953, AAQB W3950/104 23/406/1 part 1, ANZ
Wellington.
152
Oruamatua Kaimanawa 2C1
Oruamatua Kaimanawa 2O
Oruamatua Kaimanawa 2Q1
Oruamatua Kaimanawa 2Q2
Oruamatua Kaimanawa 3A
Oruamatua Kaimanawa 3C
Oruamatua Kaimanawa 3D
Oruamatua Kaimanawa 3E
Oruamatua Kaimanawa 3F
Total
100
975
750
75
280
550
580
2150
1115
£9195
The Court ordered that the compensation be paid to the Maori Trustee for distribution to the
owners. The Trustee’s commission was to be met by the owners because the Crown was
‘paying full value for the land.’ On 26 February 1962, Cabinet approved expenditure for the
compensation award.352 The compensation payment was forwarded to the Maori Land
Court in Wanganui on 12 March 1962.353
3.8 The 1973 Taking
On 13 November 1973, further Maori land was taken under the Public Works Act 1928 for
Waiouru military training ground.354 A total area of 24,224 acres was acquired by the
Crown, being 16,277 acres 2 roods of European land and 7946 acres 2 roods of Maori land:
Block
Oruamatua Kaimanawa IX
Oruamatua Kaimanawa 2C2
Oruamatua Kaimanawa 2C3
Oruamatua Kaimanawa 2C4
Oruamatua Kaimanawa 4
Owners
European
Maori
Maori
Maori
Maori
Total
Area
16,277a 2r 00p
1570a 0r 00p
1571a 2r 00p
1353a 0r 00p
3452a 0r 00p
24,224a 0r 00p
As all of this land lies outside of the Whanganui Inquiry District. Steps to acquire the
additional land began in late 1964. On 16 November 1964, the Army Secretary wrote to the
Commissioner of Works, explaining that the Tongariro power development scheme was to
352
Secretary of Cabinet to Minister of Defence, 26 February 1962, AAQB W3950/104 23/406/1 part 2, ANZ
Wellington.
353
District Commissioner of Works to Registrar, Maori Land Court, 12 March 1962, AAQB W3950/104
23/406/1 part 2, ANZ Wellington.
354
New Zealand Gazette, 1973, no. 107, p 2427.
153
restrict the use of training lands in the Moawhango area, particularly for live ammunition in
tank training.355 The Army Secretary explained that additional land would be required for
the firing range, and asked that moves towards the acquisition of such land be undertaken.
Little file evidence concerning the background to the taking of the additional Waiouru
defence land has been located.356 It appears that an attempt to purchase the Maori land may
have been made, but was abandoned because of the same difficulties that had been
experienced during the 1950s. On 29 October 1973, when recommending that the lands be
taken under the Public Works Act 1928, the District Commissioner of Works claimed that
there was ‘no alternative but to acquire the Maori land under the compulsory provisions of
the Act.’357 In the case of the European land, it was explained that the Public Works Act
had to be employed because the company that owned the land was reluctant to negotiate.
3.9 Conclusion
The Maori lands that were acquired in 1942 and 1961 for extensions to the military training
grounds at Waiouru comprise the largest takings of Maori land from the Whanganui
Inquiry District, involving over 11,000 acres. (The 1961 taking and a later taking in 1973
also saw the acquisition of over 32,000 acres of Maori land that lies outside of the Inquiry
District.) Transfer of title to the Crown was seen to be necessary because of concerns over
claims for damage, safety issues, and the inconvenience of having to periodically negotiate
shooting rights.
The 1942 and 1961 takings show that, around the mid-twentieth century, the attitudes and
policies of government departments changed with regard to the acquisition of Maori land
for public purposes. The 1942 taking was a compulsory acquisition, which was executed in
accordance with the minimum statutory requirements of the 1928 Act. Prior to the taking,
the Native Department showed a protective concern for Maori interests, suggesting that a
355
Army Secretary to Commissioner of Works, 16 July 1964, AAQB W3950/104 23/406/1 part 2, ANZ
Wellington.
356
The Ministry of Works’ Head Office file contains surprisingly little correspondence relating to the taking,
while efforts to locate the Wanganui District Office file (92/25/0/8/6) have been unsuccessful.
154
meeting of owners should be called to discuss the proposed acquisition. However, this
suggestion was ignored by the Army Headquarters, perhaps because of urgencies resulting
from the wartime circumstances. A proclamation was issued by the Public Works
Department without any prior notification, such notice not being a statutory requirement for
takings for defence purposes.
Greater concern for consultation was evident from 1949, when Army Headquarters looked
to acquire further Maori land for the Waiouru training grounds. By this time, the taking of
Maori land by compulsion was increasingly being seen as unacceptable. Pointing to the
large number of owners and the sizeable area of land involved, the Maori Affairs
Department encouraged negotiations with the owners. The Department noted that
compulsory acquisition was resented by Maori. Army Headquarters and the Public Works
Department accepted that a negotiated approach should be followed. Efforts initially
focussed on the possibility of an exchange, which had been suggested by owners at a
meeting with the District Engineer in September 1950. By the end of 1952, the prospect of
an exchange faded, all investigations undertaken by the Department of Lands and Survey
having established that no suitable Crown lands were available. It may be that greater
flexibility could have been shown to accommodate an exchange, particularly as such a large
area of Maori land was required for the training ground extension. Without specific
requirements to take account of Maori interests, it appears that the Lands and Survey
Department would always have determined that Crown land was required for a more
important purpose than exchange with Maori owners.
After the exchange option had been dismissed, steps were taken to acquire the land by
negotiated purchase. The Maori Affair Department unsuccessfully pursued this strategy
between 1953 and 1957. Purchase by negotiation proved to be difficult because the existing
legislation was inadequate to overcome the problem of dealing with large numbers of
owners whose interests were typically small. It seems that many owners believed
attendance at meetings was unjustified because they would individually be entitled to only
357
District Commissioner of Works to Commissioner of Works, 29 October 1973, AAQB W3950/104
23/406/1 part 2, ANZ Wellington.
155
a small sum of purchase money. Locating owners also seems to have been problematic, as
were title issues and the need for successors to be appointed. All of these difficulties
stemmed from the form of title that had been created for Maori through the Native Land
Court. Late in 1957, the Secretary of Maori Affairs reluctantly advised the Public Works
Department to proceed with compulsory acquisition, noting that such action was ‘contrary
to normal Government policy’. The possibility of an exchange was briefly revisited before
notice of intention to take was finally given in August 1960. Though not required by law,
this notification was seen to be ‘diplomatic’. One objection was made to the taking, but this
was rejected prior to the land being proclaimed taken in February 1961. It appears that
compulsory acquisition was employed again in 1973 because of the difficulties of securing
a negotiated agreement.
The Waiouru defence takings also raise issues relating to the process of determining and
paying compensation. The owners were not represented when either the 1942 or the 1961
takings came before the Court for assessment. During the 1942 hearing, the Court
demonstrated that, by this time, it offered some protection of owners’ interests in cases
where they were not represented. The Public Works Department’s compensation offer of
£10 for 6324 acres was rejected by the Court as unreasonable. However, it appears that no
final settlement was reached in this case, clearly a significant failing on the part of the
government agencies that were responsible for applying for compensation, and ensuring
that it was determined and paid. The owners may not have been aware of the failure to pay
compensation as the process did not ensure that they were consulted. In cases where the
owners were not represented, the responsible agencies were largely unaccountable for their
actions.
156
Chapter 4: Education – Koroniti Native School Site Acquisition (1899)
and Disposal (1977)
4.1 Introduction
The site of Koroniti Native School (also known as Pamoana Native School) was gifted to
the Crown by the owners of Tauakira 2 in accordance with the requirements of the Native
School Code 1880. The land was transferred into Crown ownership, not as a taking under
the Public Works Act, but by an order of the Native Land Court made on 2 June 1899. The
school site – Tauakira 2C – was acquired by the Crown as if it had been purchased. In
1969, Koroniti Native School was closed. The school site was then deemed to be surplus to
the requirements of the Wanganui Education Board, and in 1974 it was transferred to the
Department of Lands and Survey, which proceeded with disposal. The Department believed
that the land had been purchased and therefore did not offer the school site back to the
former owners in accordance with the established practice applied to gifted land. Instead,
the Department granted preferential disposal to local farmers. On 20 October 1977, a
freehold title for Tauakira 2C was issued in the names of K R Marshall, D C Marshall, and
R H Marshall. Upon learning that the school site had been disposed of to the Marshalls,
local Maori unsuccessfully attempted to secure the return of the land. The Lands and
Survey Department accepted that the land probably had been gifted, but failed to resolve
the situation. In 1988, Taukira 2C was subdivided with neighbouring land. Today, the land
continues to be held as privately owned general land.
4.2 The Gifting of the School Site
From the beginning of the Native schooling system, Maori communities were required to
contribute land and funds to assist in the establishment of their schools. Alan Ward
suggests that this was not simply a policy of cost minimisation, claiming that the
contributions were viewed primarily as a means of gauging and capturing Maori interest in
157
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Figure 5: Koroniti Native School Site (Source: ML 1547, Wellington Land
District, LINZ)
158
the schools.358 Under the Native Schools Act 1867, Maori who requested the establishment
of a school were expected to provide land and also contribute money towards building costs
and the teacher’s salary. The Native Schools Amendment Act 1871 enabled Maori to
provide extra land in lieu of money. The regulations for the establishment of Native schools
were further refined in the Native School Code 1880:
If at least 10 Maori actually residing at any locality, petition the Minister of Education for a
Native School, and if they, or any of them, offer to give at least two acres of land suitable for
a school site, and promise, further, to make such contribution in money or in kind towards the
cost of school buildings as the Minister may require, the Government may establish a school
in that locality.359
The 1880 Code remained in force when steps were taken in the late 1890s to establish
Koroniti Native School.
The Education Department file that deals with the acquisition of the school site at Koroniti
does not include any correspondence from local Maori requesting the establishment of a
school. It seems that the matter was first raised sometime in 1895, when Hori Pukehika,
who appears to have lived at Koroniti, visited the Wellington office of the Education
Department in the company of James Carroll, MHR.360 On 18 February 1896, the Inspector
of Native Schools, James Pope, visited Koroniti in order to assess the level of interest in
establishing a school and to inspect potential school sites. In his report to the Inspector
General of Schools, Pope explained that he had met with Pukehika in Wanganui before
travelling up the river, and had been advised ‘that three sites had been chosen at Koroniti
for me to select from’.361
Upon arriving at Koroniti, Pope received ‘a very enthusiastic welcome’. He compiled a list
of 56 children, the total number that he thought might attend the proposed school from
Koroniti and nearby settlements. Pope reported that he had an opportunity to talk to ‘the
principal people’, but had not had ‘a formal korero’. He stated that a local Maori, Mr
358
Alan Ward, A Show of Justice, Oxford University Press, Auckland, 1974, pp 210-211.
The Native Schools Code, p 1, AJHR, 1880, H-IF.
360
Pope to Inspector General of Schools, 22 February 1896, BAAA 1001/432a 44/4 part 1, Maori Schools –
Building and Site Files – Pamoana, 1896-1903, ANZ Auckland.
361
Ibid.
359
159
Osborne, ‘had paved the way admirably by explaining to the others . . . the chief bearings
of the Native School Code on the business to be settled.’ In the brief period of time that the
steamer schedule enabled him to spend at Koroniti, Pope visited one of the three ‘offered
sites’. This site was in an elevated position, from where he was able to view the other two
sites. Pope selected one of the sites that lay on the flat:
The site chosen is on a plateau overhanging on its west side, the Wanganui River. The soil is
level & fairly good and now under crop (potatoes). . . . It is about 31/2 acres in extent. There is
plenty of firewood at hand. This site is about a quarter of a mile from Koroniti, which is a
pretty large settlement, and . . . really central for its group. It lies almost due south from the
settlement. The two rejected sites are situated, one about three-quarters of a mile east from the
pa, and the other on the top of a hill close to the pa.362
Accepting the assurances of local Maori, Pope believed that a school at Koroniti would
‘receive large and satisfactory support from Koroniti, Atene, Karatiu, and Parakino.’ He
thought that, with suitable buildings and good teachers, it could be expected that a
permanent average of 40 children would attend the school. In summary, Pope stated that it
was ‘probable that the Department will receive entire satisfaction here, from the number of
children that will attend, the enthusiasm of the parents, and the general suitability of
Koriniti [sic] for Native School work.’
On 25 February 1896, a staff member of the Education Department, W J Habens, wrote to
Chief Land Purchase Officer Paul Sheridan, requesting advice as to how title to the school
site might be secured.363 Habens noted that the site, an area of about 31/2 acres, was located
within Maori owned Tauakira block. (The Native Land Court had investigated the title of
Tauakira block in 1893, awarding it to 833 owners, with a total of 1410 shares.364) In reply,
Sheridan advised that interests in the block that had been purchased by the government
were to be defined by the Native Land Court. He stated that it was likely that the school site
362
Ibid.
Habens to Sheridan, 25 February 1896, minute on file cover for 96/169/37, BAAA 1001/432a 44/4 part 1,
ANZ Auckland.
364
Berghan, Paula, ‘Block research narratives of the Whanganui district, 1865-2000’, a report commissioned
by the Crown Forestry Rental Trust, August 2002, pp 874-875.
363
160
would be included in the Crown award.365 When the case came before the Court on 18 June
1896, the block was partitioned in accordance with an agreement between the owners and
Richard Gill of the Land Purchase Department.366 The Crown was awarded Tauakira 1,
containing 27,810 acres, while the non-sellers, numbering 401, were awarded Tauakira 2,
containing 22,890 acres. The school site was not included in the Crown’s award as
Sheridan had anticipated, falling instead within the boundaries of Tauakira 2.
The acquisition of the school site was raised again in December 1896, when Pope wrote to
the Inspector General of Schools, advising him that Sheridan and an agent of the Land
Purchase Department, a Mr Goffe, would address the matter during an upcoming visit to
Wanganui.367 Pope stated that Goffe would ‘endeavour to get the question of the Corinth
site settled as soon as possible’, thereby enabling building work to begin ‘without risk’.
Habens informed Hori Pukehika that he would be able to meet with Sheridan in Wanganui.
Habens believed that the transfer of the school site to the Crown would be ‘a matter of no
great difficulty’.368 Once again, however, no immediate progress was made with the matter.
The school site, with an area of 3 acres 2 roods 21.7 perches, was surveyed in May 1897.369
The plan prepared from the survey shows that the proposed school site was being occupied
by three owners.
It was not until mid-1899 that the Crown finally secured title to the gifted school site. By
this time, the construction of the buildings had been completed and the school opened. In
his annual report of 31 March 1899, Pope stated that teaching at the school had been
underway for several weeks.370 He described the school to be ‘the business of the
settlement’. The school site passed into Crown ownership by an order of the Native Land
Court. This order was made soon after the Court had defined the Crown’s interest in
Tauakira 2, an application that was dealt with on 22 May 1899.371 Having purchased
365
Sheridan to Habens, 4 March 1896, minute on file cover for 96/169/37, BAAA 1001/432a 44/4 part 1,
ANZ Auckland.
366
Berghan, pp 874-875.
367
Pope to Inspector General of Schools, 23 December 1896, BAAA 1001/432a 44/4 part 1, ANZ Auckland.
368
Habens to Pukehika, undated, BAAA 1001/432a 44/4 part 1, ANZ Auckland.
369
ML 1547, Wellington land district, LINZ.
370
Inspector of Native Schools to Inspector General of Schools, 31 March 1899, AJHR, 1899. E-2, p 6.
371
Wanganui minute book 40, 22 May 1899, p 333.
161
10931/56 shares out of a total of 7435/6 shares, the Crown was awarded the proportionate
area of 3371 acres, which was to be known as Tauakira 2A. The non-sellers, holding
63447/168 shares, were awarded an area of 19,518 acres, Tauakira 2B. Once again, the
school site was not included within the boundaries of the Crown’s award, which were
agreed upon by Sheridan and some of the owners. However, on 2 June 1899, the Court
made a further order in favour of the Crown for the school site, which was to be known as
Tauakira 2C.372
In awarding the school site to the Crown, the Court treated it as land that had been
purchased. An addition made to the Tauakira 2 purchase deed stated that the school site was
‘to be included in this purchase’.373 However, it seems that the Crown had not paid any
money for the site, as all of the interests that had been purchased by the Crown were
defined in the Tauakira 2A award. It appears that the school site was gifted in accordance
with the Native Schools Code 1880. This appears to have been the understanding of the
owners, as on 28 June 1899, when the Court was considering the partition of the Maori
award, Hori Pukehika described the school site to be ‘a contribution of all the people.’374
On 21 July 1899, Tauakira 2A and 2C were declared Crown lands under section 250 of the
Land Act 1892.375
It seems that at the time that Koroniti Native School site was acquired, the Education
Department had yet to develop a standard practice for transferring gifted Maori land into
Crown ownership. This is evident from the fact that in February 1896 the Department had
sought Sheridan’s advice as to how title to the school site should be secured.376 As the
Crown had been purchasing interests in Tauakira block and would need its interest to be
defined, it was decided that the school site should be acquired through the Native Land
Court. In other cases, the Crown secured title to land gifted for Native Schools by taking it
under Public Works legislation. This was the case with the site of Okautete Native School,
372
Wanganui minute book 41, 2 June 1899, p 41.
Deed 796, LINZ.
374
Wanganui minute book 41, 28 June 1899, p 180.
375
New Zealand Gazette, 1899, no. 64, pp 1359-1361.
376
Habens to Sheridan, 25 February 1896, minute on file cover for 96/169/37, BAAA 1001/432a 44/4 part 1,
ANZ Auckland.
373
162
the taking of which is examined in the Wairarapa Ki Tararua public works report.377 The
site of this school was acquired in April 1903 under the Public Works Act 1894, with the
proclamation detailing that the land had been gifted.378 It appears that acquisition under
Public Works legislation may have become the standard way that the Crown secured title to
land gifted for Native Schools. In the Wairarapa ki Tararua district, this practice was being
followed in the 1940s, when land was taken for Aohanga (Owahanga) Native School.379
4.3 Disposal
Koroniti Native School was closed in 1969 because of declining student numbers. In a
report written for the Wanganui District Commissioner of Works on 31 July 1974,
Assistant Land Purchase Officer D Macdonald recommended that the site of Koroniti
Native School be transferred to the Department of Lands and Survey ‘for administration
and or disposal.’380 Macdonald explained that the school site had become surplus to the
requirements of the Wanganui Education Board. He detailed that Tauakira 2C had been
declared Crown land in 1899, when – in a notice published in the New Zealand Gazette – it
was listed with other Maori lands acquired by the Crown. This notice was seemingly
interpreted as evidence that the site had been purchased, meaning that it could be disposed
of without reference to the former owners or their descendants. Macdonald provided a
description of the property, detailing that it included a three bedroom villa and two roomed
school house. A special government valuation carried out in March 1874 had determined
that the buildings on the school site possessed a value of $3600. Macdonald reported that
there were two parties that had shown an interest in the property: local farmers G H
Marshall and Sons, and H Lourie of Wanganui. It was noted that G H Marshall was renting
the dwelling on the school site. Macdonald stated that all government departments had been
advised that the school site had been deemed surplus, but none had expressed any interest
in the land.
377
Marr, Cleaver, and Schuster, pp 198-210.
New Zealand Gazette, 1903, no. 31, p 1025.
379
Ibid, pp 206-207.
380
Assistant Land Purchase Officer to District Commissioner of Works, 31 July 1974, LS 8/1/57, Koroniti
school site, DOC Wanganui.
378
163
On 12 September 1974, the District Commissioner of Works wrote to the Commissioner of
Crown Lands, requesting that the recommendation for transfer to the Department of Lands
and Survey be actioned.381 Macdonald’s report was enclosed with this letter. The
Commissioner of Crown Lands was advised that a further party had expressed interest in
the school site, R L Lupton of Wanganui High School, who believed the land might be used
for outdoor education purposes.
Some 18 months later, on 26 February 1976, the Commissioner of Crown Lands wrote to
the District Field Officer in Palmerston North, informing him that the Koroniti Native
School site had been handed to the Department of Lands and Survey for disposal.382 The
Commissioner stated that the land ‘was purchased from the Maoris in the 1890s and was
declared Crown land by New Zealand Gazette 1899.’ As a consequence of this, he claimed
that the school site ‘does not need to be returned to Maori ownership by way of gift as it
was purchased.’ The District Field Officer was asked to arrange for G H Marshall to sign a
license to occupy the dwelling on the school site, but to convey to Marshall that this licence
would not give him preferential grounds to acquire the property when it was sold, which
was only granted in ‘exceptional cases’. The Commissioner also requested the District
Field Officer to inspect the property and submit a report and valuation for disposal
purposes.
Reporting to the Commissioner of Crown Lands on 18 November 1976, the District Field
Officer in Palmerston North advised that he had interviewed R H Marshall of G H Marshall
and Sons.383 Marshall had told the District Field Officer that he believed that the school site
had been gifted by local Maori:
Mr R H Marshall . . . is not entirely satisfied with the status of the land is as you have averred.
He has been intimately acquainted with the Maoris of the area over a long period, and has
been, as he says, ‘reliably informed’ that the land was given by the Maori owners to the
Crown for school purposes, and the understanding was that once it was no longer required for
381
District Commissioner of Works to Commissioner of Crown Lands, 2 September 1974, LS 8/1/57, DOC
Wanganui.
382
Commissioner of Crown Lands to District Field Officer, 26 February 1926, LS 8/1/57, DOC Wanganui.
383
District Field Officer to Commissioner of Crown Lands, 18 November 1976, LS 8/1/57, DOC Wanganui.
164
a school, it was to be returned. . . . He does not dispute that the buildings belong to the
Crown.384
The District Field Officer explained that G H Marshall and Sons were willing to purchase
only the improvements, but would also purchase the land if it was evident that it had been
purchased from the Maori owners. The District Field Officer stated that the Marshalls
wished to use the dwelling for shearers’ quarters and the school building for hayshedding.
It was noted that they owned land on either side of the school site, and also large areas
across the road. The Marshalls were described by the District Field Officer to be large scale
farmers. He stated that the three brothers who comprised the partnership were ‘almost
legendary figures’, who had ‘identified themselves with the country and people of the
Wanganui River over many years.’ The District Field Officer recommended preferential
disposal of the land and improvements to G W Marshall and Sons. This recommendation
was subject to two conditions: first, that disposal proceed only if there was ‘satisfactory
proof’ as to the manner of acquisition; secondly, that the Marshalls advertise their intention
to acquire the land and call for objections. Disposal would be carried out at valuations
assessed by the District Field Officer: $4400 for improvements, $600 for the land.
On 26 January 1977, the Commissioner of Crown Lands wrote to the District Field Officer,
advising that he would be putting the case for preferential disposal before the Land
Settlement Board.385 The Commissioner believed that the case for preferential disposal was
weak because the site had been purchased by the Crown and not gifted by the Marshalls.
On 29 March 1977, before the disposal had been dealt with by the Land Settlement Board,
a Mr and Mrs Potaka of Wanganui wrote to the Department of Lands and Survey,
expressing their interest in acquiring the tenancy of the school site.386 They noted, however,
that the Ngati Pamoana people were interested in having the land returned, and that they did
not wish to prevent this. On 13 May 1977, the Commissioner of Crown Lands responded to
384
Ibid.
Commissioner of Crown Lands to District Field Officer, 26 January 1977, LS 8/1/57, DOC Wanganui.
386
This letter has not been located, but its contents were later recalled in a letter that District Community
Officer M P Potaka wrote to the Maori Affairs District Officer on 18 July 1978. District Community Officer
to District Officer, 18 July 1978, ABWN 6095 W5021/222 6/6/1391, Koroniti School Site, 1977-1981, ANZ
Wellington.
385
165
Mr and Mrs Potaka’s letter, informing them that the disposal of the school site was ‘still
being investigated’.387
On 2 August 1977, the Land Settlement Board – contrary to the Commissioner of Crown
Lands’ expectations – approved preferential disposal of Tauakira 2C to the Marshall
brothers.388 The Board had considered a report that was based largely on that that had been
provided by the District Field Officer on 18 November 1976. With regard to the Crown’s
acquisition of the land, this report stated that the Tauakira 2 purchase deed provided proof
that the land had been purchased. As detailed above, an addition had been made to this
deed, stating that the school site was ‘to be included in this purchase’.389
The Commissioner of Crown Lands advised solicitors acting for the Marshall brothers that
the Land Settlement Board had approved the disposal of the school site to their clients.390
He explained that the disposal was subject to the Marshall brothers advertising their
intention to acquire the property in a local newspaper. A copy of the required advertisement
was enclosed with the Commissioner’s letter. If no objections were received, the brothers
would be able to secure a freehold title upon payment of $5000, or alternatively, they
would be able to secure a 20 year deferred payment license with a $1000 deposit.
On 29 August and 5 September 1977, the required advertisement was published in the
Wanganui Chronicle under the heading ‘Application for Crown Land’.391 Without detailing
that the land had been the site of Koroniti Native School, or explicitly specifying that there
was an intention to purchase, the notice stated only that the Marshall brothers had ‘applied
to the Commissioner of Crown Lands . . . for the area of 1.4712 ha situated on the
Wanganui River Road, 59 km north of Wanganui, being Tauakira 2C situated in Block XV
Tauakira Survey District.’ It was noted that objections were to be lodged with the
Commissioner of Crown Lands no later than the 29 September 1977. No objections were
387
Commissioner of Crown Lands to Mr and Mrs Potaka, 13 May 1977, ABWN 6095 W5021/222 6/6/1391,
ANZ Wellington.
388
Report for disposal case 77/294, LS 8/1/57, DOC Wanganui.
389
Deed 796, LINZ.
390
Commissioner of Crown Lands to Jack, Riddet, Young, and Partners, 19 August 1977, LS 8/1/57, DOC
Wanganui.
166
made. On 20 October 1977, a freehold title was issued in the names of K R Marshall, D C
Marshall, and R H Marshall.392
4.4 Efforts to Have the School Site Returned
It was several months before local Maori discovered that the school site had been sold to
private European interests. On 11 May 1978, the secretary of the Whanganui City Maori
Committee, Mrs K J H Te Paa, wrote to the Education Department with regard to the
school site, believing that it remained in Crown ownership.393 (Recalling the background to
this letter, M P Potaka stated that the Committee – interested in using the school site for
outdoor education programmes for Maori youth – had met with Ngati Pamoana and had
resolved to support them in securing the return of the land.394) On 2 June 1978, the
Commissioner of Crown Lands replied to Te Paa’s letter, advising that the former school
site was unavailable for either leasing or purchase.395 He explained that approval had been
given for the land to be disposed of to adjoining owners, and that these owners, after
advertising their intention without response, had then secured the freehold to the land.
Te Paa wrote again to the Commissioner of Crown Lands on 14 June 1978.396 Pointing to
enquiries that had been made before the disposal had been finalised, particularly the letter
that had been written by Mr and Mrs Potaka, Te Paa expressed regret that the interests of
local Maori had seemingly been overlooked:
It is difficult to accept that after Mr Potaka’s enquiry regarding purchase of the Koroniti
School that four months later freehold title is given to Messrs DC, KR and RH Marshall.
Surely with both Mr and Mrs Potaka and the Trustees of Koroniti Marae being interested in
391
Wanganui Chronicle, 29 August and 5 September 1977.
L&S G13 transaction card, LS 8/1/57, DOC Wanganui.
393
This letter has not been located, but is referred to in Commissioner of Crown Lands to secretary,
Whanganui City Maori Committee, 2 June 1978, ABWN 6095 W5021/222 6/6/1391, ANZ Wellington.
394
District Community Officer to District Officer, 18 July 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
395
Commissioner of Crown Lands to secretary, Whanganui City Maori Committee, 2 June 1978, ABWN
6095 W5021/222 6/6/1391, ANZ Wellington.
396
Ta Paa to Commissioner of Crown Lands, 14 June 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
392
167
the above-mentioned land that your Department would have had the courtesy to have
informed them of the above-mentioned Europeans’ interest in the land. Instead, the letter
dated 13 May 1977 stated that the disposal of the school was still being investigated and until
those investigations were completed, could not advise further on the utilisation of the area.397
Te Paa also criticised the newspaper notification, stating that it was unclear that the notices
related to Koroniti Native School and that the word ‘application’ meant purchase. Asserting
that the school site should have been returned, she advised the Commissioner that there
were precedents where gifted land had been revested by the Crown in its original owners.
Te Paa explained that this had been achieved by the Department of Lands and Survey
applying to the Maori Land Court under section 436 of the Maori Affairs Act 1953. In a
letter written on 3 July 1978, the Commissioner of Crown Lands informed Te Paa that
research indicated that the land had not been gifted, but instead sold by an order of the
Native Land Court dated 5 June 1899.398 The Commissioner stated that it was unfortunate
that the notice had been overlooked, and suggested to Te Paa that she approach the new
owners of the land.
Around this time, Te Paa, as secretary of the Whanganui City Maori Committee, raised the
issue of the unreturned school site in letters to the Minister of Lands and the Minister of
Maori Affairs.399 Te Paa was advised that the concerns of the Whanganui City Maori
Committee would be investigated.400 Detailed research into the Crown’s acquisition of the
school site was then undertaken by Brian Herlihy, the Deputy Registrar of the Maori Land
Court in Wanganui. Herlihy examined the Native Land Court minute book evidence,
concluding that the land had indeed been gifted. In particular, he showed that the interests
that had been purchased by the Crown were defined wholly in the Tauakira 2C award.
Herlihy also noted the comment that had been made by Hori Pukehika, who had described
the school site to be ‘a contribution of all the people’. These findings were outlined in a
397
Ibid.
Commissioner of Crown Lands to Te Paa, 3 July 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
399
Te Paa to Minister of Lands, undated, ABWN 6095 W5021/222 6/6/1391, ANZ Wellington; Te Paa to
Minister of Maori Affairs, undated, ABWN 6095 W5021/222 6/6/1391, ANZ Wellington.
398
168
report prepared for Maori Affairs’ head office, which was dated 21 July 1978.401 On 7
August 1978, the Minister of Maori Affairs forwarded the report and related
correspondence to the Minister of Lands, asking that he respond to Te Paa’s enquiry.402
Investigations into how the school site had passed into Crown ownership were also made
by the Department of Lands and Survey. On 31 August 1978, the Commissioner of Crown
Lands wrote to the Director General of Lands, advising him that it was apparent – largely
from the evidence presented in the Deputy Registrar’s report – that the school site had
indeed been gifted.403 The Director General informed the Minister of Lands of this
conclusion, acknowledging that ‘the land should have first been offered back to the
descendants of the original owners.’ He stated that the present situation was complicated
because the freehold of Tauakira 2C had been secured by the Marshall Brothers, who were
under no obligation to sell the land.404 Claiming that ‘some form of settlement in favour of
the Maoris’ was required, the Director General stated that a meeting would be called to
discuss the matter. He noted that under normal circumstances the descendants of the
original owners would have been required to pay for the improvements, which had been
valued at $4400.
On 20 September 1978, the Director General of Lands wrote to the Commissioner of
Crown Lands, discussing how the situation might be resolved.405 He claimed that there
were two possible courses of action:
400
Minister of Lands to Te Paa, 6 July 1978, ABWN 6095 W5021/222 6/6/1391, ANZ Wellington; private
secretary of Minister of Maori Affairs to Te Paa, 7 July 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
401
Deputy registrar to head office, Maori Affairs, 21 July 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
402
Minister of Maori Affairs to Minister of Lands, 7 August 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
403
Commissioner of Crown Lands to Director General of Lands, 31 August 1978, ABWN 6095 W5021/222
6/6/1391, ANZ Wellington.
404
Director General of Lands to Minister of Lands, 19 September 1978, ABWN 6095 W5021/222 6/6/1391,
ANZ Wellington.
405
Director General of Lands to Commissioner of Crown Lands, 20 September 1978, ABWN 6095
W5021/222 6/6/1391, ANZ Wellington.
169
1. The Crown purchase the property from the Marshalls and then make it available to local
Maori at a cost of $4400 for the improvements.
2. The Crown pay the descendants of the owners $600 – the amount it received for the
land as a result of its sale to the Marshall Brothers.
The Director General stated that he favoured the second option because the Marshall
brothers had secured a guaranteed freehold title to the land. He explained that there was
little that could be done if the Marshalls were not prepared to sell, and thought it was
unlikely that the Lands and Survey Department would attempt to reacquire the land by use
of the Public Works Act. The Commissioner of Crown Lands was requested to arrange for
a meeting of all parties so that the position could be ‘clearly and frankly explained’. The
Minister of Maori Affairs was advised of the intention to hold a meeting of interested
parties.406
The meeting was eventually held on 4 December 1978 at the Maori Land Court in
Wanganui.407 The Commissioner of Crown Lands, F C McMullan, attended the meeting, as
did several other Lands and Survey staff members. District Community Officer M P Potaka
and the Deputy Registrar of the Court were also present. The meeting was attended by
thirteen members of the Maori community. Most of these individuals were trustees of
Koroniti Marae Committee, but there were also representatives of the Whanganui City
Maori Committee and Atihau Incorporation. One of the Marshall brothers and his wife
were also present at the meeting. (On 3 November 1978, the Commissioner of Crown
Lands and two other Lands and Survey staff members had met with R H Marshall and his
wife and son, informing them that there was ‘some evidence’ of gifting and that local Maori
were interested in having the school site returned.408)
Addressing the meeting first, McMullan defended the Lands and Survey Department,
claiming that it had not been negligent in believing that the school site had been purchased.
406
Minister of Lands to MacIntyre, 28 September 1978, ABWN 6095 W5021/222 6/6/1391, ANZ
Wellington.
407
J M P, note for file, 11 January 1979, LS 8/1/57, DOC Wanganui.
408
Commissioner of Crown Lands, note for file, 24 November 1979, LS 8/1/57, DOC Wanganui.
170
He stated that the Department had reached this finding after undertaking detailed research
that had been carried out in good faith. Though McMullan acknowledged that recently
submitted evidence indicated that the land had been gifted, he asserted that ‘no conclusive
evidence was available’. At this point, the meeting was addressed by the Deputy Registrar
of the Court, Herlihy, who stated that though the evidence was perhaps not conclusive, it
nevertheless appeared that the school site had indeed been gifted. Herlihy outlined his
research into the matter, explaining that it appeared that the land had been included in the
purchase of the larger block merely for reasons of convenience. This view was also
expressed by Rangi Pokiha, one of the Marae trustees.
McMullan then asked what use Maori might make of the school site if it was returned to
them. Responding to this, Henry Bennett, a member of the Whanganui City Maori
Committee, stated that there was an intention to use the land, if returned, as an outdoor
pursuits centre. Expanding on this later in the meeting, Bennett explained that the school
site was thought to be suitable for this purpose because of its proximity to the Whanganui
River, Koroniti marae, and bush areas. He stated that the aim of the proposal was ‘to get
young Maoris out of the city and into a controlled rural environment’.
McMullan pointed out that if the land was returned to the Maori, they would have to pay a
considerable sum for the improvements. He then proceeded to outline the two ways of
resolving the situation that had been identified by the Director General of Lands: Crown
repurchase followed by return to Maori upon their payment of $4400 for the improvements,
or alternatively, payment of the $600 that had been received for the land. McMullan
advised the meeting that he favoured the second alternative. Rangi Metekingi, Chairman of
Atihau Incorporation, responded by stating that the Incorporation would be prepared to pay
the $4400 that would be required to secure the return of the land. McMullan then pointed
out there was a difficulty because of the fact that a freehold title had been issued to the
Marshalls. He stated that the Crown ‘now had no standing’, and that any negotiations
would have to be with the Marshalls. McMullan noted that the decision as to whether the
land might be repurchased ‘would have to be made by the Marshalls and the Crown would
171
not try to influence them.’ Mr and Mrs Marshall do not appear to have made any comment
throughout the meeting.
McMullan’s move to distance the Crown from any further involvement in efforts to have
the school site returned into Maori ownership was contested by Hoe Marumaru, member of
the Whanganui City Maori Committee and secretary of Atihau Incorporation. Marumaru
claimed that the Crown had a further interest in the matter ‘by virtue of its mistake’. He
claimed that the Lands and Survey Department had been wrong in not approaching the
Maori Land Court to ascertain whether the school site had been gifted or purchased.
Marumaru also raised the issue of the newspaper notification that had been given prior to
the land being sold to the Marshalls. McMullan accepted that there had been ‘some
defficiency [sic] in Departmental procedures followed in this instance’, but claimed that
Departmental records had indicated that the land was purchased. As to the notification,
McMullan acknowledged that it would have been useful to have had some reference to the
land being the site of Koroniti School. However, he expressed surprise that some people
had seen the notice, but not recognised that it related to the school site, even though these
individuals were aware that there was an intention to dispose of the property. McMullan
reiterated his opinion ‘that the matter was no longer legally in the Crown’s hands.’
At the conclusion of the meeting, Marumaru requested that the Lands and Survey
Department give an immediate indication as to whether it would negotiate with the
Marshalls for the return of the land. Responding to this, McMullan stated that the
Department could write to the Marshalls, but had no idea as to how they might respond. He
stated that the only other solution would be the payment of the $600 that had received from
the Marshalls for the land value, money which he suggested could be contributed towards a
community project.
On 12 January 1979, the Commissioner of Crown Lands wrote to the Marshall brothers in
fulfilment of the assurance that he had given at the recent meeting.409 After explaining the
409
Commissioner of Crown Lands to D C, K R, & R M Marshall, 12 January 1979, LS 8/1/57, DOC
Wanganui.
172
background to the ‘awkward position’, the Commissioner stated that the Department was
obliged to make a formal approach to ascertain whether the Marshall brothers would enter
into negotiations to sell the school site back to the Crown. He claimed that this would be
the only way that the situation could be resolved to the satisfaction of all parties. Stating
that the decision lay entirely in their hands, the Commissioner asked the Marshall brothers
to give the matter some consideration.
There is no record of any response from the Marshall brothers to the suggestion that they
negotiate with the Crown and enable the school site to be repurchased. However, in April
1979, their solicitor indicated that it might be possible to exchange the school site for
Crown land in the area that could provide for a haybarn and shearers’ quarters.410 No
suitable area of Crown land was found, and it was therefore suggested that the school site
should be exchanged for an area of Maori land. The Marshall’s solicitor showed little
interest in this idea, believing that such an exchange would be difficult.411
On 1 July 1980, the Commissioner of Crown Lands wrote to the Assistant District Field
Officer, advising that there was continuing Maori interest in the school site, despite the
Department’s efforts ‘to maintain a very low-key approach to this issue’.412 He stated that
though Maori interest in the issue had appeared to be abating, the Maori Affairs
Department had indicated that this was not the case. The Commissioner therefore asked that
discussions be held with the Marshalls in order to establish whether there was any prospect
of opening negotiations for repurchase.
After receiving a copy of this letter, the Director General of Lands wrote to the
Commissioner of Crown Lands on 8 July 1980, expressing concern at the ‘low key
approach’ that was being followed.413 The Director General agreed that care should be
taken in approaching the Marshalls, but believed that every effort should be made to
resolve the case. Aware that no Crown land was available, he suggested that a nearby area
410
No copy of this letter has been found. It is referred to in Commissioner of Crown Lands to ADFO, 1 July
1980, LS 8/1/57, DOC Wanganui.
411
Commissioner of Crown Lands to ADFO, 1 July 1980, LS 8/1/57, DOC Wanganui.
412
Ibid.
173
of private land might be acquired to exchange with the Marshalls for the return of the
school site.
On 10 July 1980, the Minister of Lands, Venn Young, was questioned about the school site
in Parliament by Wanganui MP Russell Marshall, who had probably been approached on
the matter by members of the local Maori community. Marshall asked what steps the
Minister had taken ‘to meet the request to return the land . . . to its original Maori
owners?’414 In reply, the Minister of Lands stated:
that meetings have been held with the present owners and the Maori interests. Subsequently a
formal approach was made to the present owners to ascertain if they were prepared to
negotiate a sale back to the Crown. Despite further approaches no reply has been received but
my department is following the matter up in an endeavour to resolve it to the satisfaction of
both parties.415
Writing to the Director General of Lands on 12 August 1980, the Commissioner of Crown
Lands advised that the question of repurchase had been discussed with the Marshalls. He
stated that it had become clear from these discussions that the Marshalls would not
negotiate to sell the school site back to the Crown.416 The Commissioner noted, however,
that the possibility of acquiring other land for exchange was still being investigated.
In the meantime, on 21 July 1980, the Minister of Maori Affairs wrote to the Minister of
Lands, enclosing a detailed submission that he had received from the Whanganui City
Maori Committee.417 The Minister of Lands was asked to comment on the submission,
which had been prepared on 29 June 1980.418 The submission provided an account both of
the disposal of the school site and the efforts that local Maori had made in attempting to
413
Director General of Lands to Commissioner of Crown Lands, 8 July 1980, LS 8/1/57, DOC Wanganui.
Question No. 17 for written answer, 10 July 1980, LS 8/1/57, DOC Wanganui.
415
Ibid.
416
Commissioner of Crown Lands to Director General of Lands, 12 August 1980, ABWN 6095 W5021/222
6/6/1391 ANZ Wellington.
417
Minister of Maori Affairs to Minister of Lands, 21 July 1980, ABWN 6095 W5021/222 6/6/1391 ANZ
Wellington.
418
Submission of Whanganui City Maori Committee to Minister of Maori Affairs, 29 June 1980, ABWN
6095 W5021/222 6/6/1391 ANZ Wellington.
414
174
have the gifted land returned. It expressed concern at the progress that had been made since
the meeting held on 4 December 1978, suggesting that the matter was not receiving
appropriate attention. Pointing to the educational, cultural, and recreational opportunities
believed to be at stake – ‘the furtherance of the original objects of our old people when they
gifted the land ’ – the Committee asked the Minister to assist in securing either the return of
the school site or the granting of another area of land in the same locality.
On 18 August 1980, the Director General of Lands forwarded the Whanganui City Maori
Committee’s submission to the Commissioner of Crown Lands.419 The Commissioner was
asked to provide an up-to-date report for a letter of reply to the Minister of Maori Affairs.
Having reviewed all of the relevant file evidence, the Director General made a number of
comments on the situation surrounding the disposal of the school site. First, believing that it
had not conclusively been proved that the school site had been gifted, the Director General
suggested that the stance of the Department should be that it was ‘prepared to give the
Maoris the benefit of the doubt’. The Director General also commented that the wife of R H
Marshall was a descendent of the original owners. Though he acknowledged that this was
‘of no direct relevance to the past action taken by the department’, he thought that it was ‘a
point worth bearing in mind’ during discussions with the various interested parties.
The Director General also suggested that Atihau Incorporation, if it was prepared to
purchase the school site, might be willing to sell an area of land to the Crown. This land
could then either be used as a replacement site for the descendants of the former owners, or
given to the Marshalls in exchange for the school site. Lastly, the Director General asked
whether the Maori had been formally offered the $600 that the Marshall’s had paid for the
value of the land. He noted that it had been suggested that this sum could be given to a
community project that would meet Maori interests on the river. Providing that the persons
laying claim could prove that they were entitled descendants, the Director General
indicated that this payment could be made quickly and ‘without any conditions’.
419
Director General of Lands to Commissioner of Crown Lands, 18 August 1980, ABWN 6095 W5021/222
6/6/1391 ANZ Wellington.
175
On 10 October 1980, the Commissioner of Crown Lands wrote to the Director General of
Lands, enclosing a draft letter of reply to the Minister of Maori Affairs.420 Believing that it
was time for ‘a firmer stand’ to be taken, the Commissioner stated that:
Several alternatives have been explored and I believe that the Department has done more than
it could reasonably be expected to do to resolve an issue of this nature. The alternative of
purchasing other land in the area is to my mind ‘over kill’ solution which would not only lead
to unwarranted cost to the taxpayer but also to virtual admission that the Crown was in error.
This has not been conclusively proven.421
These sentiments were reiterated in the Commissioner’s draft letter of reply to the Minister
of Maori Affairs:
although there still remains no conclusive evidence that the school site was ever gifted, the
Department has made a positive effort to rectify what it seems to be an injustice. I do not
believe that the Crown can be expected to pursue the more costly alternatives such as
purchasing privately owned land in the locality.422
It was suggested that the ‘only reasonable solution’ seemed to be the payment of $600 to
the Maori Trustee, either for dispersal to Ngati Pamoana or for some suitable community
project. This project, it was noted, might involve the purchase of other land, possibly from
Atihau Incorporation.
The approach outlined in the draft letter was rejected by the Minister of Lands, who
discussed the issue of the school site with the Director General of Lands on 19 November
1980.423 Changing his position somewhat, the Director General advised the Minister that
the Crown should act on the basis that the school site was gifted. In light of this, he
believed that there was ‘an onus on us [the Department of Lands and Survey] to
420
Commissioner of Crown Lands to Director General of Lands, 10 October 1980, ABWN 6095 W5021/222
6/6/1391 ANZ Wellington.
421
Ibid.
422
Minister of Lands to Minister of Maori Affairs, undated draft, ABWN 6095 W5021/222 6/6/1391 ANZ
Wellington.
423
Director General of Lands, note for file, 20 November 1980, ABWN 6095 W5021/222 6/6/1391 ANZ
Wellington.
176
compensate the descendants of the original donors because of our failure to return the land
to them when it was no longer required for a school.’ The Director General thought that the
Department could not simply make an offer of $600, and believed that a new offer would
have to be made in accordance with existing land values. The Minister was advised by the
Director General that land exchange appeared to be an unlikely solution, and therefore
suggested that all negotiations should concentrate on monetary compensation. A new letter
of reply to the Minister of Maori Affairs was drafted on the basis of the strategies for
settlement put forward by the Director General. The Minister of Lands signed this letter on
2 December 1980.
The Director General of Lands advised the Commissioner of Crown Lands that a settlement
based on monetary compensation was to be negotiated.424 With this objective in mind, the
Commissioner was asked to hold urgent discussions with the Whanganui City Maori
Committee. He was told that the amount offered was not to be less than the existing market
value of the land. In accordance with these instructions, a meeting was held at the Maori
Land Court on 16 December 1980.425 The meeting was attended by the Assistant
Commissioner of Crown Lands and two other Lands and Survey staff members, and by
‘representatives of the local Maori people’. While some of the Maori present thought that
the payment of monetary compensation was the only available option, this was not accepted
by the majority, who were led by a Mr Bailey.426 These individuals believed that the Crown
could repurchase the land from the Marshalls ‘if the price was right’. Mr Bailey expressed
confidence that a direct approach by representatives of the Maori people would be
successful, a strategy that was approved by the majority of those who were present. The
Lands and Survey staff members agreed to this approach, but made it clear that while every
proposal would be considered, the Crown would not be party to paying an inflated price for
the land. It was therefore left that representatives of Ngati Pamoana would approach the
Marshalls and contact the Department after discussions had been held. An alternative
solution was put forward by Hoe Marumaru, member of the Whanganui City Maori
424
Director General of Lands to Commissioner of Crown Lands, 26 November 1980, ABWN 6095
W5021/222 6/6/1391 ANZ Wellington.
425
Senior Field Officer, note for file, 16 December 1980, LS 8/1/57, DOC Wanganui.
177
Committee and secretary of Atihau Incorporation. Marumaru did not consider that it would
be possible for the Crown to acquire the school site under the Public Works Act, but
thought that the government should look at passing special legislation to enable the land to
be returned. Commenting on this suggestion in a report written for the Director General of
Lands, the Commissioner of Crown Lands believed that it was ‘not a desirable alternative,
nor would it be acceptable to Government.’427 Commenting more generally on the meeting,
the Commissioner expressed disappointment that greater progress towards a settlement had
not been made. However, he was hopeful that the Maori would ‘adopt a more conciliatory
approach’ after they had discussed the matter with the Marshalls. The Director General of
Lands provided the Minister of Lands with a report on the meeting, a copy of which was
forwarded to the Minister of Maori Affairs.428
On 18 March 1981, a note was made on file of a meeting that had taken place between the
Whanganui City Maori Committee and the Marshalls.429 It was recorded that the secretary
of the Whanganui City Maori Committee had been contacted, and had advised that the
outcome of the meeting had been ‘fairly unsatisfactory’. The secretary stated that a meeting
would be arranged with the trustees of Koroniti Marae in order to establish whether they
wished to pursue the matter any further. On 11 August 1981, the Commissioner of Crown
Lands advised the Assistant District Field Officer that there were no new developments.430
The Department of Lands and Survey next considered the issue in August 1982, when the
Marshalls expressed an interest in either purchasing or securing a long term tenure over 132
hectares of Crown land, being Section 1, Block XVI, Tauakira Survey District. On 11
August 1982, the Assistant District Field Officer wrote to the Commissioner of Crown
426
Commissioner of Crown Lands to Director General of Lands, 17 December 1980, ABWN 6095
W5021/222 6/6/1391 ANZ Wellington.
427
Ibid.
428
Director General of Lands to Minister of Lands, 24 February 1981, ABWN 6095 W5021/222 6/6/1391
ANZ Wellington; Minister of Lands to Minister of Maori Affairs, 4 March 1981, ABWN 6095 W5021/222
6/6/1391 ANZ Wellington.
429
Note, 18 March 1981, on Minister of Lands to Minister of Maori Affairs, 4 March 1981, LS 8/1/57, DOC
Wanganui.
430
Commissioner of Crown Lands to ADFO, 11 August 1981, LS 8/1/57, DOC Wanganui.
178
Lands, advising him of the Marshall’s interest in this land.431 Stating that the Marshalls’
had earlier indicated a willingness to consider an exchange proposal for the return of the
school site, the Assistant District Field Officer asked the Commissioner whether
negotiations should be reopened for an exchange involving the Crown land that the
Marshalls now wished to acquire. No response to this letter has been found, but it seems
evident that the Assistant District Field Officer was instructed to pursue an exchange
proposal. On 31 May 1983, the Assistant District Field Officer wrote to the Commissioner
of Crown Lands, reporting that on 27 May 1983 he had met with one of the Marshall
brothers and discussed the exchange proposal.432 He stated that Marshall was not interested
in the exchange proposal. The Assistant District Field Officer stated that Marshall’s reasons
for this stance were:
1. The condition of other Maori owned land in the area.
2. The fact that there were unused facilities in Koroniti belonging to Maori.
3. The value of the residence on the school site, which was being occupied by the
driver of the school bus.
4. The fact that land owned by the Marshalls surrounded the school site.
Marshall was informed that without entering into an exchange deal, his application for
tenure over the Crown land would be declined, an ultimatum that he accepted ‘with good
grace’.
It appears that this was the Lands and Survey Department’s final attempt to resolve the
dispute over Koroniti School site. The last piece of correspondence relating to the matter is
a letter that the Commissioner of Crown Lands wrote to Mr Bailey on 12 April 1984.433
The Commissioner advised Bailey, who he had recently met through the Aotea Maori Land
Advisory Committee, that he had no new ideas as to how the issue might be resolved.
431
Assistant District Field Officer to Commissioner of Crown Lands, 11 August 1982, LS 8/1/57, DOC
Wanganui.
432
Assistant District Field Officer to Commissioner of Crown Lands, 31 May 1983, LS 8/1/57, DOC
Wanganui.
179
4.5 Present Ownership
In 1988, Tauakira 2C and Tauakira 2M3A2N10B were subdivided to create Lots 1, 2, 3,
and 4 of DP 64997.434 This subdivision effectively erased the boundaries of the school site,
Tauakira 2C, the former area of which now contains portions of Lots 1, 2, and 3 of DP
64997. Lots 1 and 3 of DP 64997 are held by Kevin Te Karami Marshall.435 Lot 2 of DP
64997 is held by Corine Ngareta Te Au, who acquired this land from Otui Farms Limited in
1989.436
4.6 Conclusion
In providing land for school sites, Maori showed a willingness to contribute towards
projects that would benefit their communities. Though Maori retention of the land may
have fostered ongoing cooperative relationships, government policy required the school
sites to be transferred into Crown ownership. Pope, the Inspector of Native Schools, stated
that the school buildings at Koroniti could only be erected ‘without risk’ after the land had
been secured by the Crown. Security of title was seen to be important if public money was
to be spent on buildings and other improvements.
A standard method for transferring Maori lands gifted for schools into Crown ownership
does not appear to have been developed by the time the Koroniti Native School site was
acquired in 1899. The Education Department sought advice as to how the Koroniti land
might be secured from Sheridan, the Chief Land Purchase Officer. It was eventually
transferred into Crown ownership by an order of the Native Land Court, as if it had been
purchased. The evidence clearly shows that no money was paid for the school site, which
was described by one owner to be ‘a contribution of all the people’. The land was gifted by
the owners in accordance with the provisions of the Native Schools Code 1880.
433
Commissioner of Crown Lands to Bailey, 12 April 1984, LS 8/1/57, DOC Wanganui.
DP 64997, Wellington Land District, LINZ.
435
CT 33D/139, Wellington Land District, LINZ; CT 33D/140, Wellington Land District, LINZ.
436
CT 33D/138, Wellington Land District, LINZ.
434
180
As with land taken for public works purposes, it is apparent that an offer back principle
applies to gifted land that is no longer required for the purpose for which it was given. The
owners of Koroniti Native School site were denied this protection because the land was
transferred to the Crown in a way that suggested that it had been purchased. The Crown
failed to adequately acknowledge and record the gift. Evidence from the Wairarapa ki
Tararua Inquiry District suggests that taking under the Public Works Act became the
standard method by which land gifted for Native schools was transferred into Crown
ownership. For the owners of these gifted lands, taking under the Public Works Act assured
the protection of offer back.
When handling the disposal of the school site in the mid-1970s, the Department of Lands
and Survey failed to adequately establish that the land had indeed been purchased as was
assumed. This failing seems especially great given that the possibility of gifting had been
mentioned in early discussions with R H Marshall, and had also been alluded to in the letter
written by Mr and Mrs Potaka in March 1977. The Department failed to follow up
expressions of concern from the Maori community, effectively denying them further input
before disposal.
Following disposal, when the Department accepted that the land had indeed been gifted, it
seems that it could have taken more active steps to correct the mistake that had been made.
Instead, the Department adopted something of a ‘hands off’ approach, hoping that Maori
interest in the matter would eventually dissipate. The Department failed to take appropriate
action even though Maori expressed dissatisfaction at the settlement options that were
presented at the two meetings held in Wanganui. The Department was unprepared to put
significant funds towards repurchase and would not consider employing the Public Works
Act to reacquire the school site. Exchange proposals were considered, but these depended
upon the availability of suitable land and the approval of the Marshalls. The issue has been
left unresolved, without any settlement having been reached with the descendants of the
former owners of the school site.
181
Chapter 5: Railways – Taking of Land for the North Island Main Trunk
Railway and Additional Taumarunui Takings (1907, 1915, 1917, and
1919)
5.1 Introduction
Early in 1885, after protracted negotiations, Whanganui and King Country Maori consented
to provide land for the North Island Main Trunk railway on the condition that they would
be paid compensation. In April 1885, steps were taken to transfer the necessary land into
Crown ownership under the Public Works Act 1882. This process required compliance with
the provisions that related specifically to Maori land (sections 23 to 25), as well as those
that concerned railways (Part VI). On 2 April 1885, the Governor signed an Order in
Council under section 24, enabling work to begin through the Maori lands. On the same
day, the Governor also signed three proclamations under section 130, which defined 30
miles of the railway’s middle line, enabling construction to commence in accordance with
the provisions of Part VI.
It seems that the Maori lands that were required for the railway passed into Crown
ownership by a series of proclamations issued under Part VI of the 1882 Act, and later, the
equivalent provisions of Part VII of the Public Works Act 1894. The promise to
compensate the Maori owners appears to have never been fulfilled, though in 1890 limited
settlements were reached with the owners of certain King Country blocks. After this time,
there was a shift in the Public Works Department’s position concerning the payment of
compensation for the land taken for the railway, perhaps because awareness of the
agreement with Maori diminished.
In 1903, the Solicitor-General advised that the Department was not liable to pay
compensation, apparently believing that it was appropriate to apply the statutory provision
that allowed up to five percent of the area of Maori blocks to be taken for road or railway
purposes without compensation. There were many additional takings for the Main Trunk
railway, further land being acquired for the expansion of stations, storage yards, and for
182
water supply purposes. For example, in and around Taumarunui, a further 21 acres 3 roods
19.2 perches was taken from Ohura South G4 by takings carried out in 1907, 1915, 1917,
and 1919. Compensation does not appear to have been paid for all of the additional takings
at Taumarunui, suggesting further application of the five percent rule. Some of the land
taken for railway purposes at Taumarunui is now held in public ownership for other
purposes. At least one area has been returned to Maori ownership.
5.2 The Taking of Land for the North Island Main Trunk Railway
In the early 1880s, government policy and action in the Whanganui and King Country
districts focussed on securing Maori approval for the construction of a railway that would
complete the Main Trunk line between Wellington and Auckland. By this time, the railway
had reached Marton from the south and Te Awamutu from the north. The government did
not want to aggravate relations with local iwi and therefore did not attempt to take land for
the railway without first negotiating with Maori. The completion of the railway was linked
to other concerns: the breaking open of the King Country, the acquisition of land for
settlement needs, and the desire to realise the developing economic potential of scenic
places. The government’s negotiations with Whanganui and King Country Maori, which
took place between 1883 and 1885, have been examined in a number of reports.437 By early
1885, an agreement had been reached whereby Maori consented to the construction of the
railway subject to certain conditions. The government assured Maori that it only required
land for the track and stations, and that full compensation would be paid. These terms were
put forward by Native Minister Ballance at a meeting held at Kihikihi on 4 and 5 of
February 1885. In late February, iwi representatives agreed that land of one chain width
could be used for the track, which was to be fenced on both sides. Compensation was to be
paid for this land.
437
Cathy Marr, ‘Waimarino Purchase Report’, a report commissioned by the Waitangi Tribunal, September
2004, chapter 3; Alan Ward, ‘Wai 48 and Related Claims: Whanganui ki Maniapoto’, a report commissioned
by the Waitangi Tribunal, March 1992; Paul Hamer, ‘The Crown Purchase of the Waimarino Block’, a report
commissioned by the Treaty of Waitangi Policy Unit, August 1992; Robyn Anderson, ‘Whanganui Iwi and
183
In early 1885, the process of acquiring land for the railway commenced in accordance with
the provisions of the Public Works Act 1882, enabling construction work to proceed. As
much of the railway would pass through Maori land, the legalisation procedure under the
1882 Act required compliance not just with the general provisions that concerned railways,
but also those that related specifically to Maori land. In effect, two taking procedures had to
be carried out to acquire the land for the railway. (It was not until the passage of the Public
Work Acts Amendment Act 1887 that Maori lands required for railways were exempted
from the normal procedures that applied to the taking of Maori land.438)
The procedure for taking Maori land under the 1882 Act was set out in sections 23 – 26.
Before any Maori land could be taken for any purpose, section 24 required the Governor to
issue an Order in Council that specified the work that was to be carried out. Section 25
allowed the Governor to enter upon and take the required Maori land two months after the
gazetting of the Order in Council, without giving any notice to the owners or occupier.
There was no provision for owners to make formal objections to the taking of their land.
Provisions concerning the formation of railways and acquisition of land for railway
purposes were set out in Part VI of the 1882 Act. Section 129 required that every railway
was to be made under the authority of a special Act that described the line of the railway
and the two termini. The empowering Act for the North Island Main Trunk railway was the
Railways Authorisation Act 1884, which listed the railway among others in its schedule,
defining its route to be ‘from a point at or near Marton to Te Awamutu via Murimotu,
Taumarunui and the Ongarue River Valley’. Section 130 of the 1882 Act outlined the
procedure for occupying and taking land for railways. Construction work could not proceed
until the Governor issued a proclamation that defined the middle line of the railway or any
section thereof.439 After the middle-line had been proclaimed, the Minister of Public Works
was able to occupy land required for the construction of the railway and proceed with the
the Crown 1880-1900’, a report commissioned by the CFRT, (draft) March 1998; Waitangi Tribunal, The
Pouakani Report, Brookers, Wellington, 1993.
438
Subsection 13(3) of the Public Works Acts Amendment Act 1887 provided that Part VI of the 1882 Act
could exclusively be employed as the legal means of taking Maori land for railway purposes.
439
Subsection 130(1), Public Works Act 1882.
184
necessary formation work without committing trespass.440 At any time following the
deposit of plans, the Governor could take land for the railway by proclamation.441
On 2 April 1885, three proclamations defining some 30 miles of the middle line of the
North Island Main Trunk railway were signed by the Governor.442 These proclamations
enabled work to commence from the northern and southern termini. (A ceremony of turning
the first sod was held on 15 April 1885 on the south bank of the Puniu River, two miles
from Te Awamutu.443) On 2 April 1885, the Governor also signed an Order in Council ‘to
take Land for the North Island Main Trunk Railway’.444 Though not stated, this appears to
have been an order made under section 24 of the 1882 Act. It detailed that:
a railway, having an average width of three hundred links [7.62m], extending from a point on
the right bank of the Puniu River, in the Provincial District of Auckland, to a point at the
intersection of the railway-line from Foxton to New Plymouth . . . shall be constructed on or
through all lands held or occupied by Native owners; the total length being two hundred and
ten miles or thereabouts . . . .445
It is unclear exactly when the Maori land required for the railway passed into Crown
ownership. Section 25 of the 1882 Act enabled the land to be taken two months after the
gazetting of the Order in Council. However, there was no requirement for a proclamation to
be issued stating that the Governor had exercised his right to take. The land may not have
been taken at this time because it is doubtful whether the exact areas required for the
railway had been defined. At the meeting held with King Country tribes at Kihikihi on 4
and 5 of February 1885, Minister Ballance stated that surveys were being undertaken and
that these would be finished within three weeks.446 However, no plans resulting from these
surveys have been located. It is possible that the surveys that Ballance spoke of were
440
Subsection 130(3), Public Works Act 1882.
Subsection 130(4), Public Works Act 1882.
442
New Zealand Gazette, 1885, no. 21, pp 401-402.
443
AJHR, 1885, D-6, pp 1-5.
444
New Zealand Gazette, 1885, no. 21, pp 407-408.
445
Ibid.
446
AJHR, 1885, G-1, p 17.
441
185
undertaken only for preliminary engineering purposes, or perhaps to allow building
contracts to be finalised.
Detailed plans showing the exact areas required for the railway seem to have been prepared
only in connection with the process of legalising the line in accordance with the provisions
of Part VI of the 1882 Act, and later, the equivalent provisions of Part VII the Public Works
Act 1894. It may be that the many taking proclamations that were issued under these
provisions, which detailed the areas taken from each block, mark when the Maori lands
required for the railway passed into Crown ownership. The available evidence does not
indicate when the government and Public Works Department believed the Maori lands were
taken. In January 1887, Ballance spoke of ‘land taken for railway purposes’ at a further
meeting at Kihikihi, but by this time several taking proclamations had already been issued
under Part VI of the 1882 Act. It is not clear whether he was referring to these
proclamations or instead believed that the land had been taken under section 25.
The legalisation of the North Island Main Trunk railway under Part VI of the 1882 Act and
Part VII of the 1894 Act was carried out in stages that reflected construction progress. In a
process that did not end until after formation work was completed in early 1909,
proclamations defining sections of the middle line were issued, and the land then taken by
subsequent proclamations. The middle line of the section that passed through Taumarunui,
for example, was defined by a proclamation signed on 20 September 1901.447 This
proclamation concerned about four miles of the railway, which was described as a ‘Portion
of the Taumarunui Section’. The land required for ‘the Ohinemoa and Ongarue Sections
and Portion of the Taumarunui Section’ was taken from Rangitoto Tuhua and Ohura South
blocks by a proclamation signed on 31 October 1902.448 The plans of this taking show that
land was acquired, not just for the track, but also for stations.449 The ‘remaining Portion of
the Taumarunui Section’ was taken by a proclamation signed on 27 May 1905.450
447
New Zealand Gazette, 1901, no. 86, p 1888.
New Zealand Gazette, 1902, no. 89, pp 2420-2421.
449
SO 12387/4, South Auckland and Taranaki Land Districts, LINZ.
450
New Zealand Gazette, 1905, no. 52, p 1240.
448
186
5.3 The Question of Compensation
Without knowing exactly when the Maori lands were taken for the railway, it is unclear
what statutory provisions applied for the payment of compensation. Under the Public
Works Act 1882, compensation was determined differently depending on whether the
taking concerned customary land or land with a Crown derived title. In the case of
customary land, subsection 26(1)(a) provided that the Minister could apply to the Native
Land Court for an assessment of compensation. Where taken Maori land had a Crown
derived title, subsection 26(2) provided for compensation to be determined in the same
manner as for general takings, which were set out in Part III of the 1882 Act. This required
owners to make a claim to the Minister, which would be heard in the Compensation Court.
The different procedures for customary land and land with Crown granted title were
removed with the passage of the Public Works Acts Amendment Act 1887. Section 14
made takings of all Maori land subject to the Native Land Court for the determination of
compensation. The making of an application to the Court remained at the Minister’s
discretion. These provisions were continued in section 90 of the Public Works Act 1894.
As discussed in the Overview, statutory provisions enabled up to five percent of Maori
lands to be taken for road and railway purposes without compensation. This rule had first
been introduced for Crown granted Maori land in 1862, and initially applied only to land
required for roads. Section 106 of the Native Land Act 1873 extended the rule to railways,
while subsection 91(2) of the Public Works Act 1894 saw it applied also to customary land.
The five percent rule appears to have been widely employed at the time that the
construction of the railway began in 1885. The Assistant Surveyor General of the Auckland
District, for example, reported in 1884 that out of 234 miles of road laid out, almost 200
miles were set aside ‘in exercise of the reserved rights in Native grants.’ He commented
that the use of the five percent rule was very unpopular with Maori:
As a rule the Natives are all bitterly opposed to the roads, and look upon the taking of them as
unwarrantable proceedings on behalf of the Government, a feeling which has become much
intensified by their having acquired a knowledge of the provisions of the Crown and Native
Lands Rating Act. During the past year we have been reluctantly obliged to proceed against
187
the Natives on three occasions for obstructing surveyors laying out roads, and, though
successful so far as obtaining verdicts against them, this cannot be looked at as a satisfactory
was of carrying out the provisions of the Act.451
During the negotiations that were held in regard to the proposed railway, Whanganui and
King Country Maori were assured that compensation would be paid for the required land.
The possibility of applying the five percent rule does not appear to have been discussed.
The government’s promise of compensation was detailed in correspondence and also given
at meetings. On 9 December 1884, Henare Tikini and others wrote to the Native Minister,
asking whether compensation would be paid for the lands required for the railway.452
Commenting on this letter, Under-Secretary T W Lewis recommended that: ‘the writers be
informed that the Government intend to pay the natives found to be owners of all the land
taken for the Trunk Railway.’453 He thought that such a payment could not be made until
ownership had been decided. Ballance approved Lewis’ recommendation.454 At a meeting
held at Ranana in January 1885, Ballance encouraged those present to give land for the
railway line, though he had acknowledged that there would be a right of compensation.455
Ballance explained that: ‘The land will be taken under the [Public Works] Act and, when
the title is ascertained the value of the land will be found out by arbitration; and the money
paid to the owners’.
Ballance reiterated this position at the meeting held at Kihikihi on 4 and 5 February 1885.
He told those present that the government would pay ‘a fair price’ for the land, a sum that
would be fixed by arbitration.456 Ballance explained that the engineers wanted a chain
width for the railway, two chains where there were cuttings, and 5 or 10 acres for station
sites. Maori agreement to these terms was recorded in subsequent correspondence. In a
telegram sent on 27 February 1885, John Ormsby advised Ballance that a meeting of Maori
451
Report of Assistant Surveyor General, Auckland District, AJHR, 1884, C-1, appendix 2, p 27.
Tikini and others to Native Minister, 9 December 1884, MA 13 43, p 91, ANZ Wellington, cited in Ward,
‘Wai 48 and Related Claims’, p 52.
453
Lewis, minute, 23 December 1884, on Tikini and others to Native Minister, 9 December 1884, MA 13 43,
ANZ Wellington, p 91, ANZ Wellington, cited in Ward, ‘Wai 48 and Related Claims’, p 52.
454
Ballance, minute, 24 December 1884, on Tikini and others to Native Minister, 9 December 1884, MA 13
43, ANZ Wellington, p 91, ANZ Wellington, cited in Ward, ‘Wai 48 and Related Claims’, p 52.
455
Notes of Native Meetings, AJHR, 1885, G-1, p 4.
456
Notes of Native Meetings, AJHR, 1885, G-1, p 17.
452
188
had ‘confirmed the line to be paid for and be one chain wide and fenced at once on both
sides’.457 This resolution was confirmed in a telegram sent by Native Agent G T Wilkinson
on 28 February 1885.458 The Order in Council signed on 2 April 1885 diverged from this
agreement by specifying that an average width of three chains was required for the railway.
When Ballance met with Waikato and King Country tribes in April 1885, Maori requested
that compensation also be paid for this additional land.459
On 7 March 1885, Paiaka Te Pikikotuku and Paori Kuramate wrote to Native Minister
Balance on behalf of the Whanganui people of the Tuhua district, objecting to the ‘system
of sale’ put forward at the Kihikihi meeting.460 In reply, the Native Office advised that there
was no question of sale, explaining that compensation, if desired, would be paid for all the
land taken for railway purposes, but only to owners ascertained by the Native Land
Court.461 The government’s message that the payment of compensation was linked to the
Native Land Court probably served to undermine the objectives of the proponents of the
Rohe Potae, who opposed the operation of the Court in their territory. Owners who made
applications for investigations of title were probably mindful of the promised compensation
monies.
From around the time that construction of the railway commenced, the government began
to contradict earlier assurances by suggesting that compensation might not be paid for all
the lands required for the railway. During a visit to the King Country in April 1886,
Ballance suggested that the railway itself would be the payment for land taken for the
track.462 Later, at a meeting held at Kihikihi in January 1887, Ballance incorrectly claimed
457
Ormsby to Ballance, 27 February 1885, NO 85/692 (now destroyed), cited in King Country: Report by the
Chairman of the Royal Commission on Licensing, AJHR, 1946, H-38, appendix C, p 368.
458
Wilkinson to Under-Secretary, Native Department, 27 February 1885, NO 85/692 (now destroyed), King
Country: Report by the Chairman of the Royal Commission on Licensing, AJHR, 1946, H-38, appendix C, p
368.
459
Report of G H Wilkinson, AJHR, 1886, G-1, p 7, cited in King Country: Report by the Chairman of the
Royal Commission on Licensing, AJHR, 1946, H-38, appendix C, p 373.
460
Paiaka and others to Ballance, 7 March 1885, MA 13 43, ANZ Wellington, pp 19-21, cited in Ward, ‘Wai
48 and Related Claims’, p 58.
461
Native Office to Paiaka and others, date unknown, cited in King Country: Report by the Chairman of the
Royal Commission on Licensing, AJHR, 1946, H-38, appendix C, pp 368-369.
462
Waikato Times, 15 April 1886, cited in Ward, ‘Wai 48 and Related Claims’, p 81.
189
that it had been agreed that compensation would be paid only for land required outside a
one chain width for the track and three acres for stations.463
In December 1890, the Public Works Department settled compensation with the owners of
11 King Country blocks, negotiating under terms that were identical to those set out by
Ballance in January 1887. These settlements were confirmed by orders of the Native Land
Court, with details of the arrangements being recorded in the Court minutes.
(Unfortunately, Public Works Department files concerning the 1890 settlements appear to
have been lost or destroyed.) The first settlements were confirmed on 2 December 1890,
during a sitting of the Court in Otorohanga.464 The Public Works Department’s
representative, a Mr Cheeseman, claimed that Maori had agreed to give one chain for the
track and three acres for each station site, requiring that compensation be paid only for
additional areas. These terms – identical to those detailed by Balance in January 1887 –
differed significantly from the agreement that had been set down in the February 1885
correspondence. The Court minutes note that Cheeseman produced correspondence relating
to the agreement with Maori. It is unclear who this correspondence was between, or
whether it was examined by the Court.
Compensation settlements for the 11 King Country blocks were confirmed by orders of the
Court that were made on 2, 9, 10, and 16 of December 1890.465 The settlements concerned
the following blocks: Hangatiki, Hauturu, Kakepuku, Otorohanga, Orahiri, Ouruwhero,
Pokuru, Puketarata 2, Tahaia, Te Kumi, and Waikowhitiwhiti. On 2 December 1890, before
most of the settlements had been reached, Cheeseman told the Court that some owners
accepted the agreement that he had described, while others claimed that they were not
bound by it. In the end, the owners of eight of the blocks agreed to settlements based on the
terms detailed by Cheeseman. The owners of four of these blocks did not wish to be paid
compensation even for areas taken beyond the one chain width for the track and three
chains for station sites. In about half the cases, owner representatives were present in Court
463
464
New Zealand Herald, 27 January 1887.
Otorohanga minute book 10, 2 December 1890, pp 263-264.
190
to endorse the details of the settlements. Where owners were in attendance, the Court
minutes do not reveal whether they believed that the terms offered by Cheeseman were the
same as those of the original agreement.
In total, the owners of blocks who requested payment were awarded compensation of £131
10s. The payment of this money is discussed in a 1946 report on the King Country that was
prepared by the Chairman of the Royal Commission on Licensing, Justice Smith.466 (This
report examines the railway as one aspect of the government’s agreement with the Rohe
Potae tribes, which also included a ban on the sale of alcohol.) Smith, who examined a
Public Works file relating to the settlements, claims that little money was paid to owners
because of difficulties associated with the large number of owners and the small sums
involved. Smith stated that some of the owners wanted the compensation monies put
towards survey fees, but it is unclear whether any surveys fees were paid with the
compensation monies. In a memorandum written to the Native Minister on 15 April 1891,
the Under-Secretary of Native Affairs, T W Lewis commented that: ‘It would have been
better if the Public Works Department had not moved in this matter at all.’467 Lewis
incorrectly advised the Minister that ‘the land was in the first place given by the Natives.’
Following the settlements reached in December 1890, no further efforts were made to
compensate the owners of Maori lands taken for the Main Trunk railway. It appears that the
Public Works Department’s awareness of its obligation to compensate Maori owners
diminished over the following decade. Smith records that in 1903 the Department requested
the Solicitor General to advise whether it was liable to pay any compensation for the land
taken for the railway.468 Pointing to the five percent rule, the Solicitor General responded
465
Otorohanga minute book 10, 2 December 1890, pp 263-264; Otorohanga minute book 10, 9 December
1890, pp 292-294; Otorohanga minute book 10, 10 December 1890, pp 295-297; Otorohanga minute book 10,
16 December 1890, p 325.
466
Justice Smith, ‘King Country: Report by the Chairman of the Royal Commission on Licensing’, AJHR,
1946, H-38, appendix C, pp 374-375. Some correspondence relating to the 1890 attempt to settle
compensation in the King Country is recorded in the Native Department’s correspondence register: 91/599
and 91/1138, MA 2 24, Register of Inwards Letters, January 1891-1892 December 1892, ANZ Wellington.
467
Lewis to Native Minister, 15 April 1891, PW 19/521, cited in King Country: Report by the Chairman of
the Royal Commission on Licensing, AJHR, 1946, H-38, appendix C, p 374.
468
King Country: Report by the Chairman of the Royal Commission on Licensing, AJHR, 1946, H-38,
appendix C, p 379.
191
that there had been no statutory requirement for compensation to be paid at the time that the
Order in Council had been issued directing the construction of the railway. The Public
Works Department adopted this position when responding to later claims for compensation.
Smith states that such claims were made in 1911 and 1923, and that in both cases the
Department stated that it was not liable for any payment.469 No evidence relating to these
claims has been located.
The non-payment of compensation for land taken for the Main Trunk railway was raised in
the letter that Haitana Te Kauhi and others wrote to the Minister of Public Works in
February 1912, which is discussed in Chapter 2.470 This letter objected to the taking of land
for Waimarino scenic reserve, but also raised other concerns, including the failure to pay
compensation for land taken from Waimarino 4 for the railway track and a station site. In a
letter of reply written on 2 April 1912, the Under-Secretary of Public Works did not state
that the five percent rule had been applied to the lands taken for railway purpose.471 Instead,
he sought to justify the non-payment of compensation by suggesting that the loss suffered
by the owners had ‘been more than counterbalanced by the increase in value of the
Waimarino Block.’
Awareness of the five percent rule and its application to railway lands extended beyond the
Public Works Department. In June 1923, the Registrar of the Court suggested that an
application for an assessment of compensation had not been made for land taken for a
ballast pit at Taumarunui ‘probably because the area was less than five percent of the total
area of the block’.472 The ballast pit was among the lands taken by the proclamation that
was signed on 27 May 1905.473 Following the abolition of the five percent rule in 1927,
469
Ibid.
Te Kauhi and others to Minister of Public Works, 29 February 1912 (translation), ABKK W4069/122 52/6,
ANZ Wellington.
471
Under-Secretary, Public Works, to Rini and others, 2 April 1912, ABKK W4069/122 52/6, ANZ
Wellington.
472
Registrar to Under-Secretary, Native Department, 18 June 1923, 9/16/0, Taumarunui Native Township
General File, vol 1, 1915-1935, Office of the Maori Trustee, Wanganui, cited in Leanne Boulton, ‘Native
Townships in the Whanganui Inquiry District’, a report commissioned by the Waitangi Tribunal, 2003, p 261.
473
New Zealand Gazette, 1905, no. 52, p 1240.
470
192
Ngata commented in a letter to Peter Buck that, in employing the rule, ‘the railways have
been notorious offenders’.474
5.4 Additional Takings at Taumarunui
Significant areas of additional land were taken for the Main Trunk railway subsequent to
the proclamations issued under Part VI of the 1882 Act, or later, Part VII of the 1894 Act.
Many of the additional takings appear to have involved land in and around townships that
was required for the expansion of stations, storage yards, and for water supply purposes.
Additional takings at Taumarunui suggest that much of this land was in Maori ownership.
The following table details the areas of Maori land acquired at Taumarunui after the final
portion of the Taumarunui section had been proclaimed in 1905.
Date of taking
30 July 1907
18 February
1915
17 October 1917
19 October 1919
Proclamation reference
NZG, 1907, no. 67, p 2303.
NZG, 1915, no. 30, p 670.
NZG, 1917, no. 161, pp 39823983.
NZG, 1919, no. 62, pp 14801481.
Block
Ohura South G4
Ohura South G4C
Ohura South G4D Section 1
Ohura South G4E Section 2
Ohura South G4G
Ohura South G4E Section 2
Area
5a 2r 4p
1a 1r 6.1p
1a 1r 17.9p
5a 2r 7.4p
4a 0r 26.8p
4a 0r 37p
Total
21a 3r 19.2p
Notice of intention to take was not given prior to any of these takings, such notice not being
required for lands taken for railway purposes. The 1907 taking was carried out under the
Public Works Act 1905, while the 1915, 1917, and 1919 takings were carried out under the
Public Works Act 1908. All file evidence relating to these takings appears to have been
either lost or destroyed. Compensation does not appear to have been paid for the land taken
in 1907, suggesting further application of the five percent rule. The following table details
the sums awarded in cases where compensation was assessed.
Date of order
21 March 1916
Minute book reference
Otorohanga 58, p 117
Block
Ohura South G4C
474
Area
1a 1r 6.1p
Compensation
£25
Ngata to Buck, 9 February 1928, in M P K Sorrenson (ed.), Na To Hoa Aroha, From Your Dear Friend:
the correspondence between Sir Apirana Ngata and Sir Peter Buck, 1925-1950, volume one, Auckland
University Press, 1986, p 69.
193
15 October 1918
30 September 1919
Otorohanga 60, p 263
Otorohanga 61, p 156
Ohura South G4G
Ohura South G4E
Section 2
4a 0r 26.8p
9a 3r 4.4p
£425
£850
In April 1970, the land taken in 1907, an area of 5 acres 2 roods 4 perches, was declared to
be Crown land that was no longer required for the purpose for which it was acquired.475
This declaration was made pursuant to section 35 of the Public Works Act 1928. In 1972,
this land was set aside under the Land Act 1948 as a recreation reserve, forming part of
Taumarunui and Rangaroa Domain.476
5.5 Return of Railway Land at Taumarunui
At least one area of Maori land taken for railway purposes at Taumarunui has been returned
to Maori ownership. On 26 October 1995, Section 1 of SO plan 50264, an area of 5611m2,
was transferred from Crown ownership to the Hinengakau Development Trust.477 This land,
which appears to have formed part of the ballast pit, had been taken by the proclamation
signed on 27 May 1905.
5.6 Conclusion
The taking of land for the North Island Main Trunk railway was the first large-scale
acquisition of Maori land for public works purposes in the Inquiry District. Hoping to
increase Crown involvement in the central region, the government did not want to
aggravate relations with local iwi, and therefore did not attempt to take the required land
without first negotiating with Whanganui and King Country Maori. In February 1885,
Maori agreed to give land of one chain width for the track and further land for stations.
Compensation was to be paid for this land, and the government advised that the amount
would be determined by the Native Land Court, a policy that may have intended to
undermine the objectives of the Rohe Potae by encouraging applications for investigations
475
New Zealand Gazette, 1970, no. 27, p 802.
New Zealand Gazette, 1972, no. 92, p 2418.
477
CT 47C/839, South Auckland Land District, LINZ.
476
194
of title. At no stage during the negotiations did the government indicate that it would apply
the legislation that enabled it to take up to five percent of Maori blocks for roads or
railways without compensation. It is also notable that the government did not indicate that
sizeable additional areas would, for various operational reasons, be required for the railway
after construction had been completed. For example, in and around Taumarunui, a further
area of almost 22 acres was taken from Ohura South G4 in 1907, 1915, 1917, and 1919. It
seems likely that such takings would have been anticipated by the government when it
carried out the negotiations in the early 1880s.
It appears that the government may not have negotiated with Whanganui and King Country
Maori in good faith, as it was to pay little attention to the terms of the agreement. This is
evident in the Order in Council issued in April 1885 under section 24 of the 1882 Act,
which defined a track width of three chains, instead of the one chain agreed upon. More
significantly, the government failed to fulfil its promise of paying compensation. It began
backtracking on this matter soon after construction work began. Comments made by
Ballance in 1886 and 1887 contradicted the earlier assurances. It seems that the government
did not issue a clear directive to the Public Works Department, or any other government
agency, that compensation be settled with the Maori owners. Compensation was settled
only with the owners of certain King Country blocks in 1890, though under terms that
departed from the original agreement. After this, any awareness of the agreement with the
owners appears to have faded. In 1903, the Solicitor-General determined that the
Department was not liable to pay compensation for the taken Maori land. This position,
seemingly based on the five percent rule, was maintained by the Department when it
rejected claims in 1911 and 1923. It is evident that the five percent rule was also applied to
some of the additional takings for the railway, such as the land that was acquired from
Ohura South G4 in 1907.
195
Figure 6: Areas Taken from Maraekowhai Blocks for Track Protection, 1932
and 1934 (Source: based on cadastral information from Terraview, Terralink
NZ)
196
Chapter 6: Railways – Maraekowhai Takings (1932 and 1934)
6.1 Introduction
In 1932 and 1934, land was taken from subdivisions of Maraekowhai block for the railway
that connected Stratford with the Main Trunk at Okahukura. A significant proportion of this
land was owned by Maori. The affected Maori lands were Maraekowhai A5D2 and A5G2,
which were held under a Crown derived title. On 11 October 1932, land was taken for a
section of the track from various Maraekowhai subdivisions and other lands. An area of 42
acres 1 rood 15.3 perches was taken from Maraekowhai A5D2, while 36 acres 2 roods 4
perches was taken from Maraekowhai A5G2. On 26 October 1932, large additional areas
were taken from four Maraekowhai subdivisions, including 580 acres from Maraekowhai
A5D2 and 541 acres from Maraekowhai A5G2. This land – steep, bush covered hill country
adjoining the track – was taken to protect the bush and thereby prevent erosion and slips
affecting the track. The 1932 takings were carried out by the Public Works Department
under the provisions of the Public Works Act 1928. On 10 November 1934, a further area
of 106 acres 1 rood was taken for railway purposes from Maraekowhai A5D2, also
apparently for track protection. This taking was carried out by the Railways Department
under the provisions of the Public Works Act 1928. Notice of intention to take was not
given prior to any of the takings detailed above, such notice not being required for lands
taken for railway purposes. On 12 February 1936, the Native Land Court made
compensation orders for the areas taken from Maraekowhai A5D2 and A5G2 in 1932 and
1934. In total, 728 acres 2 roods 15.3 perches was taken from Maraekowhai A5D2, while
577 acres 2 roods 4 perches was taken from Maraekowhai A5G2. All this land remains in
Crown ownership today.
6.2 Background
A railway linking Taranaki with the North Island Main Trunk railway was first proposed in
1883, when it was suggested that a line could be built between Stratford and Te
197
Awamutu.478 A survey carried out in 1889 concluded that the best route lay between
Stratford and Ongarue. The railway that was eventually formed between Stratford and
Okahukura approximately followed this route. In spite of public pressure, work on the
railway did not commence until 1901, when construction began at Stratford. Formation
work began from the eastern end in 1911. As a result of difficult terrain and the interruption
caused by World War I, the Stratford – Okahukura railway took over thirty years to
complete, the last spike being driven in November 1932.479
As explained in Chapter 5, the procedure for taking land for railway purposes did not
require notice of intention to take to be given prior to proclamation. This exemption was
continued in the Public Works Act 1928.480 The Stratford – Okahukura railway was
authorised in two parts by separate Acts. Authority for the section between Stratford and
Whangamomona, a length of about 48 miles, was given under the Railways Authorisation
Act 1900. The section between Whangamomona and Ongarue Station on the Main Trunk
railway, a length of about 63 miles, was authorised under the Railways Authorisation Act
1901.
6.3 The Taking of Land for the Track (1932)
As with the Main Trunk railway, land for the Stratford – Okahukura track was taken in a
series of sections that appear to have reflected construction progress. The lands taken on 11
October 1932, which included subdivisions of Maraekowhai block, were required for ten
miles of line described to be the Raekohua section and a portion of the Haeo section.481 It
appears that much of the construction work on this section had been completed before the
land was taken. On 23 September 1932, the Chief Surveyor sent plans and schedules of the
affected lands to the Public Works Department.482 The proclamation was then prepared, and
478
Geoffrey B Churchman and Tony Hurst, The Railways of New Zealand: A Journey Through History,
second edition, Wellington, 2001, pp 135-139.
479
Ibid.
480
Sections 10 and 103, Public Works Act 1928.
481
New Zealand Gazette, 1932, no. 65, pp 2104-2105.
482
Chief surveyor to Permanent Head, 23 September 1932, W 1 8/26, Stratford Main Trunk – West End
Proclamations, 1931-1949, ANZ Wellington.
198
a recommendation made that it be signed.483 Though there was no provision for objection, it
was nevertheless noted that there did not appear to be any objection to the proclamation.
Following the advice of the Acting Minister of Public Works, the Governor General signed
the proclamation on 11 October 1932. Several areas were taken from Maori owned
Maraekowhai A5D2 and A5G2:
Block
Maraekowhai A5D2
Total
Area taken
6a 0r 22.0p
12a 0r 03.3p
3a 2r 20.0p
20a 2r 10.0p
24a 1r 15.3p
Block
Maraekowhai A5G2
Total
Area taken
6a 3r 34.2p
16a 0r 35.8p
12a 0r 23.0p
1a 0r 31.0p
36a 2r 06.0p
6.4 The Takings for the Protection of the Bush (1932 and 1934)
On 26 October 1932, further land was taken for the Stratford – Okahukura railway from
four subdivisions of Maraekowhai block, including Maori owned A5D2 and A5G2. The
large areas taken at this time were not required for the railway itself, but for the protection
of bush on steep lands adjoining the track. On 10 November 1934, further land was taken
for this purpose from Maraekowhai A5D2. Steps to acquire the additional areas began early
in 1929, when the District Engineer in Stratford wrote to the Commissioner of Crown
Lands, asking whether the watersheds of the Mangatotoko and Mangaone Streams might be
acquired as scenic reserves.484 The District Engineer was not interested in the scenic
qualities of the land. Rather, he wished to see the bush on the land protected because he
believed that there might be serious blockages in the culverts under the railway if it was
felled.485 He thought that such blockages would result in large repair costs and traffic
delays. On 11 March 1929, the Commissioner of Crown Lands wrote to the District
Engineer, advising him that the watersheds of the Mangatoko and Mangaone Streams
483
Voice to Under-Secretary, Public Works, 6 October 1932, W 1 8/26, ANZ Wellington.
This letter has not been located, but it is referred to in another letter, District Engineer to Permanent Head,
Public Works, 3 April 1929, ABKK W4069/118 52/105, Scenic Reserve – Mangatotoko, 1929-1951, ANZ
Wellington.
485
District Engineer to Permanent Head, Public Works, 3 April 1929, ABKK W4069/118 52/105, ANZ
Wellington.
484
199
comprised a total area of between 2300 and 2800 acres.486 He stated that most of this land
was owned by Maori, with the remaining area (about 550 acres) comprising an abandoned
Crown lease. The Commissioner of Crown Lands informed the District Engineer that he
could apply to have the Crown land designated a scenic reserve, while the Maori land
would have to be taken under the Public Works Act for scenery purposes.
The Engineer-in-Chief wrote to the District Engineer on 8 April 1929, stating that he
considered the reservation proposal ‘to be a sound one.’487 He requested an estimation of
the cost involved in securing the land. The District Engineer advised that the latest
government valuation for Maraekowhai A5D was five shillings an acre, suggesting that it
would cost between £575 and £700 to acquire the land. The District Engineer also noted
that the required Crown land was available for selection, and he therefore thought that an
early application should be made to secure it as a scenic reserve. On 29 April 1929, the
Under-Secretary of Public Works wrote to his counterpart in the Native Department, asking
if he had any objection to the Maori land being taken for the protection of bush for the
railway.488 He incorrectly indicated that the required Maori land, an area of about 2300
acres, would all be taken from Maraekowhai A5D2. (It did not yet seem to have been clear
that an area of A5G2 would also be required as part of the watersheds.) In reply, the UnderSecretary of Native Affairs advised that there did not appear to be any objection to the
taking of land from Maraekowhai A5D2.489 He detailed that this land was owned by three
individuals: Iri Tuirirangi, Te Koau Kuramate, and Te Nui Koau. It is unclear whether the
Under-Secretary of Native Affairs discussed the proposed taking with the owners. There is
no evidence that, upon receiving the ownership details, the Public Works Department
attempted to contact the three owners directly.
The Under-Secretary of Public Works also wrote to the Chairman of the Scenery
Preservation Board on 29 April 1929, outlining the proposal to acquire land adjacent to the
486
Commissioner of Crown Lands to District Engineer, 11 March 1929, ABKK W4069/118 52/105, ANZ
Wellington.
487
Engineer-in-Chief to District Engineer, 8 April 1929, ABKK W4069/118 52/105, ANZ Wellington.
488
Under-Secretary, Public Works, to Under-Secretary, Native Department, 29 April 1929, ABKK
W4069/118 52/105, ANZ Wellington.
200
railway line as a scenic reserve.490 He explained that ‘if this land is denuded of bush,
extensive slips will eventually overwhelm the railway line.’ The Under-Secretary suggested
that, if the Scenery Preservation Board agreed to the proposal, half of the cost of acquiring
the land could be charged against the construction of the railway. Writing on 11 May 1929,
the Under-Secretary of Lands and Survey advised the Permanent Head of Public Works
that a report was being prepared on the scenic qualities of the area in question.491 On 17
July 1929, the Under-Secretary of Lands and Survey wrote again to the Permanent Head,
advising that the Scenery Preservation Board had resolved to recommend that the land be
reserved for scenic purposes.492
On 19 July 1929, the Commissioner of Crown Lands wrote to the Under-Secretary of
Lands and Survey, suggesting that the proposed scenic reserve be limited to the lands that
lay north of the railway line.493 Most of the watershed was comprised of these lands.
Moreover, the Commissioner believed that the scenic value of south lying areas was not
significant enough to justify their inclusion in the reserve. In a further letter to the UnderSecretary written on 3 September 1929, the Commissioner discussed the cost of acquiring
the Maraekowhai lands.494 Noting that the most recent government valuation was five
shillings an acre, he expressed doubt that the owners would sell at this price, and thought
that ‘action under the Public Works Act will probably be necessary.’ The Commissioner
believed that the land would probably cost 10 shillings an acre if taken under the Public
Works Act.
On 13 September 1929, the Under-Secretary of Lands and Survey wrote to the Permanent
Head of Public Works, advising him that funding restrictions meant that it was unlikely that
489
Under-Secretary, Native Department, to Under-Secretary, Public Works, 27 May 1929, ABKK
W4069/118 52/105, ANZ Wellington.
490
Under-Secretary, Public Works, to Chairman, Scenery Preservation Board, 29 April 1929, ABKK
W4069/118 52/105, ANZ Wellington.
491
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 11 May 1929, ABKK W4069/118
52/105, ANZ Wellington.
492
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 17 July 1929, ABKK W4069/118
52/105, ANZ Wellington.
493
Commssioner of Crown lands, to Under-Secretary, Lands and Survey, 19 July 1929, ABKK W4069/118
52/105, ANZ Wellington.
201
half the cost of the proposed scenic reserve could be met from the Scenery Preservation
Fund.495 He stated that this position could be reviewed the following year, when financial
circumstances might be more favourable. On 30 September 1929, the Lands and Survey
Under-Secretary wrote to his counterpart in the Native Department, informing him that
funding limits would prevent the acquisition of the Maraekowhai lands during the present
year.496 Noting that the matter might be reviewed during the following year, the UnderSecretary asked if steps could be taken to have an alienation restriction placed on
Maraekowhai A5D2. (It appears that such a restriction was not requested for A5G2 because
this was held under lease and was therefore perhaps less likely to be sold.) On 15
November 1929, an Order in Council was signed by the Governor General under section
363 of the Native Land Act 1909, prohibiting the alienation of Maraekowhai A5D2 except
in favour of the Crown for a period of one year.497
In a letter written on 2 October 1929, the Under-Secretary of Public Works advised the
District Engineer that funding limitations would prevent the acquisition of land for the
proposed scenic reserve during the current year. 498 He requested the District Engineer to
raise the matter again in July or August 1930. Accordingly, on 10 July 1930, the District
Engineer wrote to the Permanent Head, asking whether there was any prospect of the land
being secured for the scenic reserve.499 He stated that he had learnt that there was a
possibility of a coal mining operation being undertaken in the Mangaone Valley, part of the
area under consideration. The District Engineer believed that this industry would
‘undoubtedly lead sooner or later to the hillsides being denuded of timber, and the culverts
and fillings endangered as a result thereof.’ In another letter, the District Engineer noted
494
Commissioner of Crown Lands to Under-Secretary, Lands and Survey, 3 September 1929, ABKK
W4069/118 52/105, ANZ Wellington.
495
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 13 September 1929, ABKK
W4069/118 52/105, ANZ Wellington.
496
Under-Secretary, Lands and Survey to Under-Secretary, Native Department, 30 September 1929, MA 1
1929/203, Maraekowhai A5D2 – Taking in Connection with the Stratford-Main Trunk Railway, ANZ
Wellington.
497
New Zealand Gazette, 1929, no. 79, p 3041.
498
Under-Secretary, Public Works, to District Engineer, 2 October 1929, ABKK W4069/118 52/105, ANZ
Wellington.
499
District Engineer to Permanent Head, Public Works, 10 July 1930, ABKK W4069/118 52/105, ANZ
Wellington.
202
that the importance of conserving the bush within the watershed had been pointed out to the
Assistant Engineer-in-Chief, C J McKenzie, during a recent tour of inspection.500
On 17 July 1930, the Under-Secretary of Public Works wrote to his counterpart in the
Department of Lands and Survey, asking whether Scenery Preservation funds might be
available for the proposed scenic reserve.501 In reply, the Under-Secretary of Lands and
Survey advised that no commitment could be made, explaining that the Scenery
Preservation vote had been limited to just £2500.502 Writing again on 27 January 1931, the
Under-Secretary suggested that the Public Works Department ‘reconsider the matter’ if the
acquisition of the land was considered to be imperative.503 In saying this, he appears to
have been pointing out that the Public Works Department could secure the lands by itself if
it was prepared to meet the whole cost. On 3 March 1931, a memorandum was written to
the Minister of Public Works, requesting that he seek Cabinet approval for the land to be
acquired from the Public Works Fund as a charge against the railway line.504 The Minister
was informed of the intention of protecting the track from slips, and advised that the cost of
acquisition would be about £1500. Cabinet approved the proposal on 30 March 1931.505
The Assistant Under-Secretary of Public Works then wrote to the Under-Secretary of Lands
and Survey, advising that the lands north of the railway line would be acquired out of the
Public Works Fund for railway purposes.506 He asked that a survey of the area be carried
out and a plan prepared to enable the proclamation to be issued. The Assistant UnderSecretary also advised the District Engineer of the decision to acquire the lands from the
500
District Engineer to Permanent Head, Public Works, 21 July 1930, ABKK W4069/118 52/105, ANZ
Wellington.
501
Under-Secretary, Public Works, to Under-Secretary, Lands and Survey, 17 July 1930, ABKK W4069/118
52/105, ANZ Wellington.
502
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 25 July 1930, ABKK W4069/118
52/105, ANZ Wellington.
503
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 27 January 1931, ABKK
W4069/118 52/105, ANZ Wellington.
504
Bennett to Minister of Public Works, 3 March 1931, ABKK W4069/118 52/105, ANZ Wellington.
505
C A Jeffery, acting cabinet secretary, 30 March 1931, note on Bennett to Minister of Public Works, 3
March 1931, ABKK W4069/118 52/105, ANZ Wellington.
506
Assistant Under-Secretary, Public Works, to Under-Secretary, 7 April 1931, ABKK W4069/118 52/105,
ANZ Wellington.
203
Public Works Fund.507 On 18 June 1931, the Under-Secretary of Lands and Survey wrote to
the Permanent Head of Public Works, informing him that the survey had been carried out
and that it was expected that the plans would soon be completed.
508
Writing again on 14
August 1931, the Under-Secretary stated that approval of the plans had been postponed to
allow for a possible amendment of boundaries in accordance with the wishes of the District
Engineer.509
On 29 October 1930, the Governer General had signed an Order in Council that extended
the alienation prohibition over Maraekowhai A5D2 for six months.510 The prohibition was
further extended for a period of 18 months by an Order in Council dated 11 May 1931.511
On 7 March 1932, the prohibition was revoked for all of Maraekowhai A5D2 except the
land required for the protection of the railway, which had been found to have an area of 580
acres.512 The proclamation was revoked to enable a local European, G S White of
Tangarakau, to purchase some of Maraekowhai A5D2 for farming purposes. White had first
raised the matter with the Commissioner of Crown Lands in a letter written on 14
September 1931.513 He then wrote to both the Aotea District Maori Land Board and his
local MP, a Mr Polson.514 The revocation was eventually carried out by the Native
Department after it had been established that the potion of A5D2 that White wished to
purchase did not include any of the land that the Public Works Department hoped to secure
for the protection of the railway.515
507
Assistant Under-Secretary, Public Works, to District Engineer, 9 April 1931, ABKK W4069/118 52/105,
ANZ Wellington.
508
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 18 June 1931, ABKK W4069/118
52/105, ANZ Wellington.
509
Under-Secretary, Lands and Survey, to Permanent Head, Public Works, 14 August 1931, ABKK
W4069/118 52/105, ANZ Wellington.
510
New Zealand Gazette, 1930, no. 74, p 3263.
511
New Zealand Gazette, 1931, no. 40, p 1538.
512
New Zealand Gazette, 1932, no. 17, p 476.
513
Commissioner of Crown Lands to White, 21 September 1931, MA 1 1929/203, ANZ Wellington.
514
White to President, Aotea District Maori Land Board, 25 September 1931, MA 1 1929/203; White to
Polson, 16 October 1931, MA 1 1929/203, ANZ Wellington.
515
Under-Secretary, Native Department, to Under-Secretary, Lands and Survey, 18 December 1931, MA 1
1929/203, ANZ Wellington; Assistant Under-Secretary, Public Works, to Under-Secretary, Native
Department, 6 February 1932, MA 1 1929/203, ANZ Wellington.
204
On 4 November 1931, the Assistant Under-Secretary of Public Works wrote to both the
Registrar of the Aotea District Maori Land Board and the District Land Registrar,
requesting ownership details for Maraekowhai A5G2, which had a total area of 2846
acres.516 The Assistant Under-Secretary was informed that a European, G C Keeble, held a
half share in A5G2, having purchased the interests of two owners in 1920.517 The Maori
owners were Ruwai Kotuku, Pea Kotuku, Karamu Kotuku, Reimana Wahapa, Kuia
Wahapa, Te Raungaiti Wahapa, and Te Huia Pikikotuku. It was noted that Keeble held a 42
year lease over the land, dating from 17 April 1913. The Assistant Under-Secretary was
also informed that an individual named W Shanks held a one year right to prospect for coal
over Maraekowhai A5G2. In the event of the prospecting being successful, Shanks’
agreement with the owners entitled him to a 50 year lease over the mines.
The Public Works Department could not proceed with the taking until a final decision had
been made as to which lands should be acquired. On 14 December 1931, the Assistant
Under-Secretary wrote to the District Engineer, asking whether land should be taken from
Subdivision 2 of Section 1 and Maraekowhai A5G1.518 In reply, the District Engineer
advised that he did not consider it necessary to acquire Subdivision 2 of Section 1.
However, he stated that he now thought that a portion of Maraekowhai A5G1 lying south
east of the track should be taken for the protection of the railway. The District Engineer
explained that he had reached this conclusion after earthworks had been undertaken in this
location: ‘the country has proved very treacherous, and . . . it would be wise to hold the
bush on this area also’. On 12 September 1932, the Assistant Under-Secretary of Public
Works wrote to the Under-Secretary of Lands and Survey, informing him that the following
areas would be taken for railway protection purposes:
Block
Maraekowhai A4A
Area
890a 0r 00p
516
Assistant Under-Secretary, Public Works, to Registrar, Aotea District Maori Land Board, 4 November
1931, ABKK W4069/118 52/105, ANZ Wellington; Assistant Under-Secretary, Public Works, to District
Land Registrar, 4 November 1931, ABKK W4069/118 52/105, ANZ Wellington.
517
Acting Registrar, Aotea District Maori Land Board, to Assistant Under-Secretary, Public Works, 6
November 1931, ABKK W4069/118 52/105, ANZ Wellington; District Land Registrar to Assistant UnderSecretary, Public Works, 6 November 1931, ABKK W4069/118 52/105, ANZ Wellington.
518
Assistant Under-Secretary to District Engineer, 14 December 1931, ABKK W4069/118 52/105, ANZ
Wellington.
205
Maraekowhai A5D2
Maraekowhai A5G1
Maraekowhai A5G2
Total
580a 0r 00p
308a 1r 30p
541a 0r 00p
2319a 1r 30p
These lands were taken by a proclamation signed by the Governor General on 26 October
1932.519
On 10 November 1934, an additional area of 106 acres 1 rood was proclaimed taken from
Maori owned Maraekowhai A5D2 for railway purposes.520 The taking was carried out by
the Railways Department under sections 34 and 216 of the Public Works Act 1928. No file
evidence concerning this taking has been located. However, it appears that the land –
adjoining the area taken in 1932 – was also acquired for railway protection purposes. It is
unclear why the Public Works Department did not carry out the taking in accordance with
established practice.
6.5 Compensation
It was not until 19 March 1935 that the Native Land Court heard applications for the
assessment of compensation for the 1932 and 1934 railway takings from Maraekowhai
A5D2 and A5G2.521 The applications were heard by the Court at a sitting held in
Taumarunui.
Commencing with the land taken from Maraekowhai A5D2 in 1932, the Court heard from a
Mr Brosnan, who appeared on behalf of the Public Works Department. Noting that the total
area of A5D2 was 2424 acres, Brosnan explained that the taken land was required for both
the railway itself and the prevention of slipping.522 He called before the Court local land
agent and farmer J H Roche, who presented evidence on the value of the land taken from
A5D2. Roche stated that he had lived in the district for almost 30 years, and claimed to
possess considerable experience as a valuer working for the government, the Bank of New
519
New Zealand Gazette, 1932, no. 68, p 2180.
New Zealand Gazette, 1934, no. 83, p 3559.
521
Tokaanu minute book 25, 19 March 1935, pp 327-332.
520
206
Zealand, and ‘rural firms’. He stated that from 1913 to 1915 he had managed an adjoining
block, Maraekowhai A4A. Roche detailed that prior to the construction of the railway,
A5D2 had been inaccessible.523 He noted that, with the formation of the railway, a bridge
built over the Tangarakau River provided access to Tangarakau Station. The land taken
from A5D2 was described by Roche to be ‘not an economic proposition for farming’. He
explained that farming had been unsuccessfully attempted on adjoining Crown lands that
were less rugged and with track access. These efforts had been ‘a dead loss from a farming
point of view’, with most of the farms having been abandoned because they were ‘not
worth working.’524 Roche claimed that the land taken from A5D2 was inferior to that that
had been farmed and abandoned. He detailed that the land was ‘very steep’, and that the
bush upon it was unsuitable for milling, with only ‘a few rimus’. Roche stated that no
traces of coal had been revealed during the formation of cuttings and tunnels through the
land.
At the conclusion of Roche’s evidence, the Court heard from N R Cleland, who had valued
the land for the Valuation Department. Cleland, a local farmer, stated that he was a member
of the Taranaki Land Board and the local representative of the Valuation Department.525 He
told the Court that he concurred with Roche’s view that the land possessed no value for
either farming or milling. He also claimed that there was no indication of coal beneath the
surface of A5D2. Cleland determined the taken land to have a total value of £165. Brosnan
asked that the Court assess compensation in accordance with the government valuation
provided by Cleland. However, the Court made no award at this time, advising that the case
would be held over until the Court sat at Wanganui, thereby providing the owners with an
opportunity to appear.
The Court then considered evidence relating to Maraekowhai A5G2, hearing once again
from Roche and Cleland, who both claimed that the land was similar to A5D2.526 Cleland
stated that A5G2 was ‘not farming land’, and claimed that it would have no value at all
522
Ibid, p 327.
Ibid, p 328.
524
Ibid, p 329.
525
Ibid, p 330.
523
207
without the railway. He informed the Court that he had found the land taken from A5G2 to
have a total value of £155. Brosnan asked that compensation be assessed in accordance
with this valuation.527 An objection was made by a representative of the owners, Wairangi
Te Tau. After an adjournment to allow the owners to consider the matter, Te Tau stated that
the owners were prepared to accept the compensation offered by the Crown. The Court
made no award, and instead adjourned the case in order to contact Mr Keeble, who owned a
half share in A5G2, as well as being the lessor.
The Court then heard an application for the assessment of compensation for the land taken
from Maraekowhai A5D2 in 1934.528 The application was presented by a Mr Davies, who
represented the Railways Department. Davies explained that the land was required for the
further protection of the track. Again, the Court heard from both Roche and Cleland. Roche
stated that the land taken from A5D2 in 1934 was ‘the same class of country’ as the land
taken in 1932. Cleland also expressed this view, and informed the Court that he had
assessed a value of £25. The Court again did not make an order, and instead adjourned the
case until the Court sat at Wanganui.
The compensation cases again came before the Court at a sitting held in Wanganui on 12
February 1936.529 The cases were dealt with briefly, and there is no evidence of any owners
having been present. In accordance with the government valuations, the Court assessed
compensation of £165 and £155 respectively for the areas taken in 1932 from Maraekowhai
A5D2 and A5G2. The Court ordered that a survey lien of £66 16s plus interest be deducted
from the A5D2 award. Compensation of £26 11s 3d was awarded for the land taken from
Maraekowhai A5D2 in 1934.
6.6 Conclusion
526
Ibid, p 331.
Ibid, p 332.
528
Ibid, p 333.
529
Wanganui minute book 97, 12 February 1936, pp 216-217.
527
208
The Maraekowhai railway takings of the early 1930s, like the additional takings in and
around Taumarunui, show that significant areas of Maori land were acquired for railway
purposes other than for the track. Over 1200 acres were taken from Maraekowhai A5D2
and A5G2 for the protection of the track. This land – steep hill country – was covered in
bush that the Public Works Department wished to prevent from being felled. It was thought
that the removal of the bush would cause slipping. Given that the Department wanted only
to ensure that the land remained in its existing condition, it seems that an alternative to
Crown acquisition could have been explored, enabling the land to remain in Maori
ownership. The possibility of an exchange also might have been investigated. Initial efforts
to secure the land as a scenic reserve seem to have been somewhat disingenuous, given that
it was not required for scenic purposes.
Notice of intention to take was not given before any of the Maraekowhai takings, such
notice not being a statutory requirement for lands needed for railway purposes. Without the
ordinary notification procedures, the owners were denied a right of objection. Possibly
reflecting a general shift in attitudes towards consultation, it seems that the Public Works
Department may have believed that the absence of a right of objection was unacceptable in
cases where lands were taken for railway purposes other than for the track, especially
where large areas were involved. This is evident from the enquiry that the Under-Secretary
made to the Native Department in April 1929, asking if there was any objection to the
proposed taking from Maraekowhai A5D2. Such an enquiry to the Native Department was
no doubt considered to be the most convenient way of establishing owners’ views when
dealing with multiply owned Maori land. It is unclear whether the Native Department
actually contacted the owners before advising that there appeared to be no objection to the
proposed taking. Though it was found that there were just three owners of Maraekowhai
A5D2, the Public Works Department did not itself attempt to notify these owners directly.
The Department later also secured ownership details for Maraekowhai A5G2, but does not
appear to have established whether there was any objections, indicating that at this time
efforts to consult were inconsistent.
209
Figure 7: Block XIVA of Taumarunui Native Township (Source: 1915 plan in
ABWN 6095 W5021/237 Pt 5 and plan in MA-MLP 1, 1910/470, both ANZ,
Wellington)
210
Wairangi Tribunal,
--------------------------------------STREET
HAKIAHA
Town Hall
(1917)
Deptl Bldgs
(1915)
0:1:0
Police
Stat jon
(1911)
0:2:0
1:0:0
Public
Works
Depot
(1937)
0:3:30
Block XIVA
TAITUA
STREET
1
Figure 8: Takings from Block XIVA, 1911, 1915, 1917 and 1937 (Source: based
on cadastral information from Terraview, Terralink NZ)
211
~ilangi
Tribunal, Sep2004
Figure 9: Maata Tuao’s Sketch Plan (Source: Tuaoto Pomare, 12 January 1915,
W1/24/429, pt 1, ANZ, Wellington)
212
Figure 10: Lots 1 – 17 of DP 17949
213
Chapter 7: Urban Amenities – Takings from Block XIVA of Taumarunui
Native Township for Government and Municipal Buildings (1911, 1915,
1917, and 1937)
7.1 Introduction
In 1911, 1915, 1917, and 1937, a total area of 2 acres 2 roods was taken from Block XIVA
of Taumarunui Native Township for government and municipal buildings:
Date of taking
25 May 1911
3 July 1915
26 May 1917
5 April 1937
Notice of
intention
28 February 1911
16 April 1915
24 October 1916
25 January 1937
Area
Purpose
0a 2r 00p
0a 1r 00p
1a 0r 00p
0a 3r 30p
police station
departmental building
municipal building
departmental building
Compensation award of
NLC
£100, 17 October 1911
£160, 16 November 1916
£2145, 1 November 1918
£502, 6 October 1938
Block XIVA was part of an area of reserve land that contained a kainga, which had been set
aside as a native allotment when Taumarunui Native Township was created. Each of the
takings were carried out by the Public Works Department, though the 1917 taking was
proclaimed on behalf of the Taumarunui Borough Council. The 1911, 1915, and 1917
takings were executed under the provisions of the Public Works Act 1908, while the land
taken in 1937 was acquired under the Public Works Act 1928. In January 1998, the areas
taken in 1911, 1915, and a 102m2 portion of the 1917 taking were vested in Maori owners
under the provisions of Te Ture Whenua Maori Act 1993. The residue of the 1917 taking
remains in local government ownership. All of the land taken in 1937 continues to be held
by the Crown.
Owing to the availability of archival evidence, this chapter focuses primarily on the 1915
and 1937 takings.
214
7.2 Background
Leanne Boulton explains that the legislation under which Native Townships were
established provided for the setting aside of reserve lands known as ‘native allotments’.530
Unlike ‘township sections’, these lands were laid off for the use and occupation of the
townships’ beneficial owners. Following the proclamation of Taumarunui Native Township
in 1903, three native allotments were set aside.531 These allotments contained 20 percent of
the township’s land.532 The takings examined in this chapter were from the largest
allotment, which comprised Blocks XIV and XIVA, an area of 20 acres.533 Referring to an
early plan of Taumarunui, Boulton explains that a kainga was situated within this allotment.
She states that this kainga, which included a meeting house and several dwellings, appears
to have been one of two sizeable Maori settlements within the town.534 The name given to
the kainga was Morero, while the wharenui was known as Hauaroa.535
A plan prepared in 1915 shows that, by this time, the native allotment comprised of Blocks
XIV and XIVA was greatly diminished.536 It is apparent that much of the allotment had
been redesignated as township sections and subdivided accordingly.537 Also, small areas
had been included in the neighbouring recreation reserve (Taumarunui Domain) and laid
off for streets.538 (The Governor was empowered to make such modifications under the
provisions of section 2 of the Native Townships Amendment Act 1903.) The 1911 taking
for the police station site had further reduced the allotment by half an acre. By the time the
1915 plan was prepared, only about 61/2 acres of the allotment remained intact as reserve
land.539 This land, located within Block XIVA, was described as Allotment 1 of Block
530
Leanne Boulton, ‘Native Townships in the Whanganui Inquiry District’, a report commissioned by the
Waitangi Tribunal, 2003, pp 52-67.
531
Ibid, Figure 13, p 251.
532
Ibid, p 242.
533
Ibid, p 254, p 264.
534
Ibid, p 254.
535
Ibid.
536
Plan, c.1915, ABWN 6095 W5021/237 7/851 part 4, Freehold of Native Townships, 1934-1938, ANZ
Wellington.
537
Boulton, p 251.
538
Ibid, p 255.
539
The exact area was 6 acres 1 roods 25.8 perches. This figure is calculated from DP 17949, South Auckland
Land District, LINZ.
215
XIVA. As shown in Figure 7, it included the area upon which the meeting house and
dwellings were located. Allotments 2 to 8 of Block XIVA were township sections that
formed a strip of land running along the eastern boundary of the block.540 The land taken in
1911 for a police station was described as Allotment 9 of Block XIVA. The freehold of
Allotment 1 of Block XIVA was held by Maata Tuao, though it is unclear when this was
granted.541 Control of this land appears to have been vested in the Waikato Maniapoto
District Maori Land Board, seemingly against Tuao’s wishes.542
There appears to be a number of factors that explain why Block XIVA was the focus of so
many public works takings. (The areas taken in 1911, 1915, 1917, and 1937 are shown in
Figure 8.) Block XIVA was centrally located, with frontage onto Taumarunui’s main street,
Hakiaha Street. It was therefore a suitable location for the municipal and government
buildings that were required as the town expanded. Boulton explains that other sections in
the business district with frontage onto Hakiaha Street were, by the time the takings began,
all leasehold sections.543 These sections could have been acquired under public works
legislation, but both the leaseholder and the owners would have been entitled to
compensation. The taking of such sections was therefore costly, a consideration that the
Public Works Department was clearly mindful of when land for departmental buildings was
selected in 1914. Boulton notes that, in contrast to the leasehold sections, the allotment land
was ‘simply set aside for Maori occupation and use with no formal designation as a ‘native
reserve’’.544 It is also worth noting that some of the leasehold sections would have been
built upon, which would have significantly increased the compensation payable for such
lands. The areas taken from Block XIVA were vacant.
Claimants have suggested that the takings from Block XIVA were the result of a deliberate
policy to remove Maori kainga from the town centre. Boulton claims that the Crown took
540
Boulton indicates that, by 1915, several narrow township sections had been laid off along the southern
boundary of Block XIVA. Figure 14, p 252. These sections were actually part of a later subdivision, which
were marked on the 1915 plan retrospectively. See DP 17949, South Auckland Land District, LINZ.
541
Boulton, p 250.
542
Tuao to Pomare, 12 January 1915, W 1 24/429 part 1, Government Buildings Taumarunui, 1914-1928,
ANZ Wellington.
543
Boulton, p 255.
544
Ibid.
216
steps to separate Maori from other inhabitants when the township was being surveyed.545
She also provides details of a recollection made by the son of an early councillor, who
claimed that the Taumarunui Township Council had wished to clear the town of kainga.
The files that concern the 1915 and 1937 takings contain no evidence that explicitly shows
that this was a motivating factor for any of the takings from Block XIVA. However, the
available evidence does reveal that there was an indifference towards Maori retaining an
allotment that had been set aside specifically for their use and occupation.546 The Public
Works Department pressed ahead with the 1915 and 1937 takings in spite of protests by
owners. As explained below, the 1937 taking appears to have been larger than necessary,
possibly because the Department was inclined to take more liberally when land was held in
Maori ownership.
7.3 The 1911 Taking
The Public Works file relating to this taking has not been located, suggesting that it has
been either lost or destroyed.547 It is therefore only possible to provide a brief account of
the taking, which was carried out by the Public Works Department. On 28 February 1911,
the Minister of Public Works signed a notice of intention to take 2 roods from Block XIVA
for a police station.548 The notice detailed that a plan of the land was available for
inspection at the Taumarunui post office, and that objections were to be made in writing to
the Minister within 40 days of first publication of the notice.549 The land was taken on 25
May 1911 by a proclamation issued under the Public Works Act 1908.550 On 17 October
1911, the Native Land Court awarded compensation of £100.551 The Public Works
Department’s representative, Mr Bold, had informed the Court that the land had a
government valuation of £100. He stated that President of the Waikato Maniapoto District
545
Ibid, p 256.
Ibid.
547
The reference for the Public Works’ file that deals with the 1911 taking is PW 11/4399. ABWN W5280
132/4, Proclamation Register, 1902-1912, ANZ Wellington, p 195.
548
New Zealand Gazette, 1911, no. 16, p 834.
549
The plan that had been prepared for the taking is SO 15949, South Auckland Land District, LINZ.
550
New Zealand Gazette, 1911, no. 39, p 1575.
551
Otorohanga minute book 53, 17 October 1911, pp 337-338.
546
217
Maori Land Board had agreed to accept this sum, and presented a telegram that verified
this.
7.4 The 1915 Taking
On 16 July 1914, the Under-Secretary of Public Works wrote to the Resident Engineer in
Taumarunui, asking whether there was any Crown land in the town that was suitable as a
site for a building that could accommodate the offices of government departments.552 The
Under-Secretary stated that he had thought that the existing post office might be replaced
with one large building, but explained that this idea had been rejected by the Postal
Department. Replying on 9 September 1914, the Resident Engineer advised that there was
no suitable Crown land in Taumarunui, except Section 7 of Block VII, which belonged to
the Postal Department.553 He stated that the Postal Department wished to retain this land,
which was positioned next to the post office. The Resident Engineer noted that there were
two sections of Crown land in Rangiora, but believed that these were ‘too far away for
business premises.’ He believed that the best site in Taumarunui was Section 13 of Block
VII, a flat section of leased Maori land located next to the courthouse. The owner had been
asking £350 for the section, the lease of which was £5 per annum, with 12 years remaining.
The Resident Engineer also provided details of several other properties in Blocks V and VI,
all Maori land held under lease, which he believed could be acquired for sums between
£150 and £300. He stated that Section 17 of Block III, another area of leased Maori land,
could be obtained for £170.
In October 1914, the Public Works Department’s Land Purchase Officer, Bold, visited
Taumarunui to select a site for the departmental building. Reporting on 6 October 1914, he
advised that he had inspected the sites identified by the Resident Engineer, but believed that
the cost of acquiring these areas would be excessive.554 He explained that ‘the owners
reversionary interest would probably amount to as much as is asked for the lease, so that
552
Under-Secretary, Public Works, to Resident Engineer, 16 July 1914, W 1 24/429 part 1, ANZ Wellington.
Resident Engineer to Under-Secretary, Public Works, 9 September 1914, W 1 24/429 part 1, ANZ
Wellington.
554
Bold to Blow, 6 October 1914, W 1 24/429 part 1, ANZ Wellington.
553
218
the sections would be fairly expensive.’ Bold believed that ‘it would be more economical &
quite as suitable as regards situation’ to take quarter of an acre from Block XIVA. He
suggested that an area adjacent to the police station site, fronting Turaki Street, should be
acquired. As to the cost of securing this land, Bold stated that: ‘I obtained the 1/2 acre for
the Police Station in the Native Land Court 3 years ago for £100; and I do not think the
adjoining 1/4 acre now should cost over £200.’
The Resident Engineer concurred with Bold’s recommendation, and on 17 October 1914,
the Minister of Public Works gave advance approval for £200 to be spent on the acquisition
of 1 rood from Block XIVA.555 On 23 October 1914, the Assistant Under-Secretary wrote
to the Resident Engineer, instructing him to arrange for the land to be surveyed in
preparation for proclamation.556 At this point, the taking process was delayed while
consideration was given to acquiring a greater area that would provide room for storage and
stabling facilities. This idea, suggested by the Resident Engineer, was eventually rejected
because the cost of acquiring additional land for such purposes was considered
excessive.557
In correspondence relating to the proposal to enlarge the area to be taken, Bold commented
that the Maori owners were likely to object to the taking of the quarter acre adjacent to the
police station site.558 Owing to its close proximity to the meeting house, Bold seemed to
believe that the owners would be more opposed to the taking of this area than to the land
that was situated on the corner of Turaki and Hakiaka Streets. However, he was
nevertheless in favour of taking the area next to the police station site because he believed
that land with main street frontage would be considerably more expensive. As shown in
Figure 8, the land forming the corner of Turaki and Hakiaka Street was taken in May 1917
for municipal buildings.
555
Resident Engineer to Under-Secretary, Public Works, 14 October 1914, W 1 24/429 part 1, ANZ
Wellington; minute of Minister of Public Works, 17 October 1914, W 1 24/429 part 1, ANZ Wellington.
556
Assistant Under-Secretary, Public Works, to Resident Engineer, 23 October 1914, W 1 24/429 part 1, ANZ
Wellington.
557
Blow to Brosnan, 19 January 1915, W 1 24/429 part 1, ANZ Wellington.
219
Bold’s prediction of Maori opposition to the taking proved correct. On 12 January 1915,
Maata Tuao wrote to Maui Pomare (MHR), requesting his assistance to prevent further land
being taken ‘without authority’ from Block XIVA.559 It is unclear how Tuao had become
aware of the proposal to acquire additional land as it was not until April 1915 that the
Public Works Department gave notice of its intention to take. Tuao stated that 31/4 acres
had already been taken from Block XIVA, and claimed that the whole of the remaining area
was now also to be taken. Tuao explained that there was a meeting house on the land, as
well as an unspecified number of dwellings. She informed Pomare that: ‘My father has
occupied this kainga for a longer period than 45 years, and it has come down to me.’ Tuao
stated that, against her wishes, the land had been vested in the Waikato Maniapoto District
Maori Land Board. She enclosed a sketch plan with her letter, which is presented as Figure
9. In stating that 31/4 acres had been taken, Tuao was referring to the 1911 taking for the
police station and the redesignation of the eastern strip of Block XIVA as township
sections. The subdivision of the allotment into township sections did not involve public
works legislation.
On 10 February 1915, Pomare forwarded a copy of Tuao’s letter to the Minister of Public
Works, asking to be advised of the Department’s intentions.560 In his reply, the Minister
pointed out that Tuao was ‘entirely misinformed’ as to the size of the taking.561 He detailed
that it would only involve quarter of an acre, and that ‘full compensation’ would be paid in
accordance with the Native Land Court’s assessment. Before Pomare had received this
response, he wrote again to the Minister of Public Works on 15 February 1915.562 He once
more requested details of the proposed taking, correctly identifying that it involved an area
adjacent to the police station site. He asked to be informed of the purpose for which the
land was to be taken, noting that ‘the Natives are objecting very strongly to the acquisition
of this Section.’ Writing again to Pomare on 1 March 1915, the Minister of Public Works
reiterated that only quarter of an acre was required and that compensation would be
558
Bold to Blow, 4 January 1915, on Brosnan to Blow, 17 December 1914, W 1 24/429 part 1, ANZ
Wellington.
559
Tuao to Pomare, 12 January 1915, W 1 24/429 part 1, ANZ Wellington.
560
Pomare to Minister of Public Works, 10 February 1915, on Tuao to Pomare, 12 January 1915, W 1 24/429
part 1, ANZ Wellington.
561
Minister of Public Works to Pomare 29 February 1915, W 1 24/429 part 1, ANZ Wellington.
220
determined by the Court.563 He advised Pomare that the land would be used as a site for
departmental offices.
There is no further evidence of Maori opposition to the proposed taking – preparations for
proclamation proceeded. On 29 March 1915, the Resident Engineer wrote to the UnderSecretary, forwarding a plan of the area to be taken.564 The Deeds Registry Office provided
title details on 8 April 1915.565 On 16 April 1915, a notice of intention to take one rood
from Block XIVA was signed by the Minister of Public Works in accordance with the
Public Works Act 1908.566 This notice detailed that a plan of the required land was
available for inspection at the Taumarunui offices of the Public Works Department.567 It
was also noted that objections were to be made in writing to the Minister of Public Works
within 40 days of first publication of the notice. The notice was published in the New
Zealand Gazette on 22 April 1915. On 30 April 1915, a copy of the notice was sent to the
President of the Waikato Maniapoto District Maori Land Board.568 On the same day,
arrangements were made for two copies of the notice to appear in a local newspaper.569
A proclamation for the taking from Block XIVA was forwarded to the Minister of Public
Works for signing on 17 June 1915.570 The Assistant Under-Secretary advised the Minister
that notice had been served on the Land Board, with no objection having been made. No
mention was made of the objection that had been made by the land’s owner, Maata Tuao.
Though it was not an issue relevant to the taking from Block XIVA, the Minister asked the
Department to be alert to the presence of urupa: ‘In all cases where Native Land is being
taken, care must be exercised to see that no more Burial Grounds are affected by any
562
Pomare to Minister of Public Works, 15 February 1915, W 1 24/429 part 1, ANZ Wellington.
Minister of Public Works to Pomare, 1 March 1915, W 1 24/429 part 1, ANZ Wellington.
564
Resident Engineer to Under-Secretary, Public Works, 29 March 1915, W 1 24/429 part 1, ANZ
Wellington.
565
Assistant land Registrar to Under-Secretary, Public Works, 8 April 1915, W 1 24/429 part 1, ANZ
Wellington.
566
New Zealand Gazette, 1915, no. 54, pp 1211-1212.
567
The plan that had been prepared for the taking is SO 18225, South Auckland Land District, LINZ.
568
Assistant Under-Secretary, Public Works, to President, Waikato Maniapoto District Maori Land Board, W
1 24/429 part 1, ANZ Wellington.
569
Assistant Under-Secretary, Public Works, to clerk in charge, Advertising Department, 30 April 1915, W 1
24/429 part 1, ANZ Wellington.
563
221
Proclamation.’571 Signed by the Governor on 19 June 1915, the proclamation taking 1 rood
from Block XIVA took effect on 3 July 1915.572
On 21 March 1916, the Native Land Court heard an application for the assessment of
compensation for the 1915 taking from Block XIVA.573 The Land Board, whom the land
was vested in, does not appear to have been represented. Appearing on behalf of the Public
Works Department, Bold informed the Court that the Department offered compensation of
£160, which was the government valuation of the land. It appears that this may not have
been a recent valuation, as the Judge reserved his decision in order to examine current land
values in Taumarunui. The Court finally made an order on 16 November 1916, awarding
compensation of £160.574 The Court minutes do not record any further evidence relating to
the value of the taken land.
The building constructed on the land taken from Block XIVA in 1915 appears to have
initially been used to accommodate staff of several government departments, including
Agriculture, Defence, Lands and Survey, and Public Works.575 The land later became
known as Allotment 19 of Block XIVA.
7.5 The 1917 Taking
As with the land acquired in 1911 for the police station, archival evidence relating to the
1917 taking has not been located. Again, only a brief account of the taking process can be
provided. The 1917 taking was carried out by the Public Works Department on behalf of
the Taumarunui Borough Council. A notice of intention to take one acre from Block XIVA
for a site for municipal buildings was signed by the Town Clerk on 24 October 1916.576
570
Assistant Under-Secretary, Public Works, to Minister of Public Works, 17 June 1915, W 1 24/429 part 1,
ANZ Wellington.
571
Fraser, minute, 17 June 1915, on Assistant Under-Secretary, Public Works, to Minister of Public Works,
17 June 1915, W 1 24/429 part 1, ANZ Wellington.
572
New Zealand Gazette, 1915, no. 77, p 2118.
573
Otorohanga minute book 58, 21 March 1916, p 117.
574
Otorohanga minute book 59, 16 November 1916, p 45.
575
See correspondence in W 1 24/429 part 1.
576
New Zealand Gazette, 1917, no. 11, p 327.
222
The notice provided details of the procedure for making objections, and noted that a plan
was available for inspection at the Town Clerk’s office.577 The land was taken on 26 May
1917 by a proclamation issued under the Public Works Act 1908.578 The proclamation
detailed that the land was to ‘vest in the Mayor, Councillors, and Burgesses of the Borough
of Taumarunui’. The Court heard an application for an assessment of compensation on 30
October 1918.579 The Borough Council’s representative, Mr Strang, asked the Court to
review the land’s government valuation, which he claimed was excessive. Strang’s case
was contested by a Mr Findlay, who represented the Waikato Maniapoto District Maori
Land Board. The Court heard a considerable amount of evidence, mostly dealing with
comparative land values. It’s decision, delivered on 1 November 1918, went against the
Council.580 The Land Board was awarded compensation of £2145, the government
valuation. The Judge stated that he did not believe the Court could be expected to review
the land’s value, explaining that all Taumarunui values had been fixed by the Assessment
Court. He noted that the value of the taken area accorded with other Borough valuations.
The area taken in 1917 became known as Allotment 18 of Block XIVA.
7.6 The 1937 Taking
By the 1930s, the Public Works Department was the only occupant of the departmental
building that had been constructed on the land taken in 1915. In 1936, the Department
began taking steps to acquire adjacent land for storage purposes. Stores held at the Turaki
Street site had increased after the closure of a depot at Ohura.581 Also, the Taumarunui
County Council had asked the Department to remove plant and equipment that was being
kept at the Council’s yards. Initially, the Department hoped to satisfy its storage needs by
acquiring part of the 1 acre that had been taken for municipal purposes in 1917. Plans to
build a town hall on this land had not been realised. The only building that had been erected
577
The plan that had been prepared for the taking is SO 18995, South Auckland Land District, LINZ.
New Zealand Gazette, 1917, no. 78, p 1848.
579
Otorohanga minute book 60, 30 October 1918, pp 303-310.
580
Otorohanga minute book 60, 1 November 1918, p 316-317.
581
District Engineer to Permanent Head, 18 January 1936, W 1 24/429 part 2, Government Buildings
Taumarunui, 1928-1946, ANZ Wellington.
578
223
was a small band-room.582 However, the Council rejected the Department’s proposal. On
24 April 1936, the Town Clerk wrote to the Permanent Head of Public Works, advising that
the Council could not accept an offer made by the Department because the land would soon
be used for municipal purposes.583 Believing that the Council would be left with sufficient
land, the Public Works Department decided to take the area it required under the Public
Works Act 1928.584 On 4 August 1936, the Minister of Public Works signed a notice of
intention to take 32 perches of Lot 18 of Section 1, Block XIVA.585 This was a little more
than half of the area that the Department had originally hoped to acquire from the Council.
The Department’s actions were met with disapproval by the Council, which resolved to
contest the taking.586 The Council made representations to the Minister of Lands, who put
the Council’s views to the Minister of Public Works. On 8 September 1936, the Assistant
Under-Secretary wrote to the District Engineer, informing him that the Minister had
instructed that the taking was not to be executed.587
Unable to secure any part of the area owned by the Council, the Public Works Department
looked at other areas that could be acquired for the enlargement of its property. In
November 1917, Allotment 1 of Block XIVA – the remaining part of the original allotment
– had been surveyed and subdivided as Lots 1 to 17 of DP 17949, which is shown in Figure
10.588 In November 1936, staff at the Taumarunui office of the Department of Public Works
decided that Lots 1, 2, and 3 of DP 17949 – all in Maori ownership, with a total area of 3
roods 3 perches – should be taken under the Public Works Act.589 In a letter written to head
office on 27 November 1936, the District Engineer explained that this decision was made
after a proposal to take Lot 1 and part of Lot 6 had been rejected because of anticipated
objections from the owners of Lot 6, which contained the meeting house and other
buildings.590 He stated that one of the owners of Lot 1, 2, and 3 had called at the office, and
582
District Engineer to Permanent Head, 21 August 1936, W 1 24/429 part 2, ANZ Wellington.
Town Clerk to Permanent Head, 24 April 1936, W 1 24/429 part 2, ANZ Wellington.
584
Bennett to Minister of Public Works, 12 May 1936, W 1 24/429 part 2, ANZ Wellington.
585
New Zealand Gazette, 1936, no.52, p 1535.
586
Taumarunui Press, 20 August 1936, W 1 24/429 part 2, ANZ Wellington.
587
Assistant Under-Secretary, Public Works, to District Engineer, 8 September 1936, W 1 24/429 part 2,
ANZ Wellington.
588
DP 17949, Wellington Land District, LINZ.
589
District Engineer to Permanent Head, 27 November 1936, W 1 24/429 part 2, ANZ Wellington.
590
Ibid.
583
224
had indicated that there would be no objection to the taking of this land. On 24 November
1936, M Poihipi had written to the Minister of Lands, objecting against any acquisition
from Lot 6.591 Poihipi, a nephew of Maata Tuao, appears to have occupied a house on the
property. The dwelling was not within the area that the Department had intended to take,
but Poihipi believed that ‘cutting up will greatly affect my house.’ He suggested that it
would be more suitable for the Department to consider the land acquired by the Council in
1917 and also Lots 1, 2, and 3, all of which was vacant.
Unfortunately, efforts to locate the Taumarunui office file that deals with the 1937 taking
have been unsuccessful. Owing to this, there is little available evidence relating to the
selection of Lots 1, 2, and 3.592 It is uncertain, for example, whether investigations were
made into the possibility of acquiring Lot 7 of DP 17949, which was situated behind the
police station, with access onto Turaki Street. This land had been purchased in 1924 by a
Mr Andrew, who appears to have constructed a building upon the property.593 (Portions of
Lot 7 were taken for departmental buildings in 1963 and 1967.594) It is also unclear why the
total area of Lots 1, 2, and 3 was considerably greater than the area that the Department had
intended to take from the Borough Council. When the proposal to take 32 perches from the
Council had been made, the District Engineer claimed that this area ‘should be sufficient
for this Department’s purposes’.595 The total area of Lots 1, 2, and 3 was almost five times
as great, some 2 roods 38 perches larger. This greater area possibly reflected an attitude
within the Public Works Department that inclined it to take undeveloped and unoccupied
Maori land more liberally than other lands. The Department may have believed that the
retention of such land was of no great importance to the owners. The failure of head office
staff to question the enlarged taking suggests that a discriminatory approach might have
extended beyond the Taumarunui office.
591
Poihipi to Langstone, 24 November 1936, W 1 24/429 part 2, ANZ Wellington.
The reference for the Taumarunui office file is PW 10/9.
593
Assistant Under-Secretary, Public Works, to Town Clerk, 16 April 1936, W 1 24/429 part 2, ANZ
Wellington. Evidence of a building is shown in the plan attached to Poihipi to Langstone, 24 November 1936,
W 1 24/429 part 2, ANZ Wellington.
594
New Zealand Gazette, 1963, no. 55, p 1427; New Zealand Gazette, 1967, no. 36, p 999.
595
District Engineer to Permanent Head, 8 May 1936, W 1 24/429 part 2, ANZ Wellington.
592
225
The acquisition of Lots 1, 2, and 3 of DP 17949 was undertaken in conjunction with an
exchange agreement that was negotiated with the Borough Council.596 It was agreed that
the Department would, after the taking process was complete, exchange part of Lot 1 for a
strip of the land that had been acquired by the Council in 1917. This strip would provide
access between the Department’s Turaki Street property and Lots 1, 2, and 3. The Council
passed a resolution confirming the exchange on 26 October 1937.597 In accordance with the
agreement, on 13 December 1937 an area of 17.1 perches was taken from Lot 18 of Section
1 under the provisions of the Public Works Act 1928.598 The portion of Lot 1 that was to be
vested in the Council was of an equivalent area, 17.1 perches.
Steps to take Lots 1, 2, and 3 of DP 17949 proceeded in January 1937. On 14 January 1937,
the Assistant Under-Secretary of Public Works wrote to the Chief Surveyor, requesting a
plan of the lands proposed for taking.599 On the same day, he also wrote to the District
Engineer, asking if any of the lands were occupied in terms of section 18(b) of the Public
Works Act 1928, which prohibited the taking of any land occupied by a building, yard,
burial ground, garden, orchard, vineyard, or ornamental park without the consent of either
the Governor-General in Council or the owner.600 The District Engineer informed the
Under-Secretary that none of lands were occupied for any of the purposes set out in section
18(b).601 On 15 January 1937, the Assistant Under-Secretary wrote to the Native Land
Court, requesting title details.602 The Minister of Public Works signed a notice of intention
to take on 25 January 1937.603 The notice detailed that a plan was available for inspection at
the Public Works’ office in Taumarunui, and that objections were to be made to the
Minister in writing within 40 days of first publication of the notice. The notice appeared in
the New Zealand Gazette on 28 January 1937.
596
Town Clerk to Board’s representative, 23 October 1936, W 1 24/429 part 2, ANZ Wellington.
Special order of Taumarunui Borough Council, 26 October 1937, W 1 24/429 part 2, ANZ Wellington.
598
New Zealand Gazette, 1937, no. 79, p 2648.
599
Assistant Under-Secretary, Public Works, to chief-surveyor, 14 January 1937, W 1 24/429 part 2, ANZ
Wellington.
600
Assistant Under-Secretary, Public Works, to District Engineer, 14 January 1937, W 1 24/429 part 2, ANZ
Wellington.
601
District Engineer to Assistant Under-Secretary, Public Works, 18 January 1937, W 1 24/429 part 2, ANZ
Wellington.
602
Assistant Under-Secretary, Public Works, to Registrar, 15 January 1937, W 1 24/429 part 2, ANZ
Wellington.
597
226
On 26 January 1937, the Registrar of the Native Land Court wrote to the Assistant UnderSecretary, enclosing a schedule of ownership details.604 This schedule showed that Lots 1,
2, and 3 were owned as one holding by 13 individuals, a number of whom were minors.
The Assistant Under-Secretary instructed the District Engineer to serve a copy of the notice
of intention to take on each of the owners or their trustees.605 Writing on 12 February 1937,
the District Engineer advised head office that the serving of notice had almost been
completed. Arrangements were made for the notice to be published twice in the
Taumarunui Herald.606
One formal objection was made to the taking. On 2 March 1937, owner Meri Para wrote to
the Minister of Public Works, advising that she was ‘not in favour of the Public Works Act
taking over our section 1, 2, 3 Taumarunui Township.’607 The Minister of Public Works
referred Para’s letter to the Under-Secretary of Public Works on 10 March 1937.608 Para’s
objection seems to have effectively been ignored. On 17 March 1937, the Department’s
legal section provided the Under-Secretary with the proclamation that had been prepared
for signing. In an accompanying note, it was stated that: ‘All relative preliminary
requirements have been complied with, and there do not appear to be any objections to the
issue of the Proclamation.’609 The Under-Secretary forwarded this note and the
proclamation to the Minister, failing to point out that an objection had been made.610 The
Governor-General signed the proclamation on 31 March 1937.611 The proclamation took
effect on 5 April 1937.
603
New Zealand Gazette, 1937, no. 6, p 286.
Registrar to Assistant Under-Secretary, Public Works, 26 January 1937, W 1 24/429 part 2, ANZ
Wellington.
605
Assistant Under-Secretary, Public Works, to District Engineer, 3 February 1937, W 1 24/429 part 2, ANZ
Wellington.
606
Officer-in-charge to Assistant Under-Secretary, Public Works, 5 February 1937, W 1 24/429 part 2, ANZ
Wellington.
607
Para to Minister of Public Works, 2 March 1937, W 1 24/429 part 2, ANZ Wellington.
608
Semple to Under-Secretary, Public Works, 10 March 1937, on Para to Minister of Public Works, 2 March
1937, W 1 24/429 part 2, ANZ Wellington.
609
Voice to Under-Secretary, Public Works, 17 March 1937, W 1 24/429 part 2, ANZ Wellington.
610
Under-Secretary, Public Works, to Minister of Public Works, 17 March 1937, on Voice to UnderSecretary, Public Works, 17 March 1937, W 1 24/429 part 2, ANZ Wellington.
611
New Zealand Gazette, 1937, no. 22, p 941.
604
227
On 23 October 1937, about a week before the proclamation was signed by the GovernorGeneral, the Assistant Under-Secretary had written to Meri Para, responding to her
objection.612 He stated that it was ‘not possible to avoid’ the taking, claiming that the land
was ‘urgently required for use by the Government.’ Para was advised that compensation
would be determined by the Native Land Court.
An application for an assessment of the compensation payable for the taking of Lots 1, 2,
and 3 of DP 17949 was heard by the Court on 22 September 1938.613 None of the owners
appear to have been present or represented. The Court asked whether any notice had been
given to the owners prior to the taking. Mr Voice, representing the Public Works
Department, provided details of the notification that had been served upon the owners. On
behalf the Department, he offered compensation of £502, explaining that this amount was
based on a special government valuation. The Taumarunui Town Clerk verified that this
value appeared on the Borough’s valuation roll. The Court reserved its decision, but in
accordance with the Department’s offer, eventually awarded compensation of £502 on 6
October 1938.614 The Court minutes record that some of the owners had advised the Court
that they would accept this sum.
7.7 Present Ownership of the Taken Lands
Some of the land taken from Block XIVA has been returned to Maori ownership. In May
1995, a certificate of title was issued in the Crown’s name for the areas that had been taken
in 1911 and 1915.615 It was noted that this land was used for police purposes and a police
station. The certificate of title detailed that Allotment 19 – the area taken in 1915 – was
subject to section 27(b) of the State Owned Enterprises Act 1986. (This provision
prohibited the transfer, other than to the Crown, of State Owned Enterprise land that was
subject to a claim under section 6 of the Treaty of Waitangi Act 1975.) In January 1996, the
Crown acquired 102m2 of the area taken in 1917 by the Taumarunui Borough Council. This
612
Assistant Under-Secretary, Public Works, to Para, 23 March 1937, W 1 24/429 part 2, ANZ Wellington.
Otorohanga minute book 71, 22 September 1938, p 208.
614
Otorohanga minute book 71, 6 October 1938, p 236.
615
CT 56D/282, South Auckland Land District, LINZ.
613
228
land, which adjoined Allotment 19, was acquired for police purposes and a police station by
an agreement pursuant to section 20 of the Public Works Act 1981.616 In February 1996, a
fresh certificate of title was issued in the Crown’s name for the areas taken in 1911, 1915,
and the 102m2 area acquired from the 1917 taking.617 Again, the certificate of title noted
that Allotment 19 was subject to 27(b) of the 1986 Act. In January 1998, a vesting order
pursuant to section 134(7) of Te Ture Whenua Maori Act 1993 was registered on the
certificate of title. This order vested the land in ‘Hauaroa’ as Maori freehold land. The
certificate of title also records the creation of a whenua tapu trust under section 216 of the
1993 Act. The land vested in 1998 remains in Maori ownership. The 102m2 area has been
leased to the Crown for a 30 year term.
Section 134 of the 1993 Act enables the Maori Land Court to make a vesting order for
Maori land taken for public works and no longer required for that or any other public
purpose.618 Such an order requires an application by the Minister of the Crown under whose
control the land is held, the chief executive of LINZ, or the local body who has taken the
land.619 The application may specify the person in whom it is proposed that the land shall
be vested, the price to be paid for the land, and any other conditions to which it is believed
that the order should be subject.620 When making an order, the Court is entitled to vest the
land in persons found to be entitled, or in accordance with the terms of the application.621
The land vested in 1998 under section 134 is the only area of the taken lands that has been
returned to Maori. Except for the small portions deducted in 1937 and 1996, the land
acquired for municipal buildings in 1917 remains in local government ownership.622 The
portion of Lot 1 of DP 17949 that was taken by the Crown for exchange purposes in 1937
also appears to remain in local government ownership. The remaining area of the 1937
taking continues to be held by the Crown.623
616
New Zealand Gazette, 1996, no. 3, p 114.
CT 58C/371, South Auckland Land District, LINZ.
618
Section 134(1)(c), Te Ture Whenua Maori Act 1986.
619
Section 134(3)(c), Te Ture Whenua Maori Act 1986.
620
Section 134(6), Te Ture Whenua Maori Act 1986.
621
Section 134(7)(a), Te Ture Whenua Maori Act 1986.
622
CT 268/278, South Auckland Land District, LINZ.
623
CT 49D/91, South Auckland Land District, LINZ.
617
229
7.8 Conclusion
By 1911, when land was taken for the site of a police station, Block XIVA comprised the
remaining area of a native allotment, an area of reserve land that had been set aside for
Maori use and occupation when Taumarunui Native Township was established. It is
therefore likely that the owners held it to be of particular importance, especially as it
contained a kainga that included a meeting house and several dwellings. The available file
evidence, which concerns the 1915 and 1937 takings, does not show that the takings from
Block XIVA were carried out with the deliberate intention of removing kainga from central
Taumarunui. It seems that Block XIVA was the focus of a number of takings because it
was centrally located and much of it was vacant and unoccupied, which meant that the land
was less expensive than other suitable lands, most of which had been leased. The Public
Works Department does not appear to have considered options other than compulsory
acquisition and transfer of title to the Crown. Leasing, for example, would have enabled the
owners to retain ownership and receive some economic benefit from the land, an
arrangement that would have been consistent with the objectives that had seen the land set
aside as a native allotment.
It is apparent that there was little consideration of the owners’ interests when the building
sites were selected for taking from Block XIVA. The owners were generally not consulted,
and the Public Works Department showed little awareness of the land’s reserve status. In
selecting the land that was taken in 1915, the Department’s Land Purchase Officer made a
recommendation that was based largely on cost, overriding an expectation that the owners’
might object because the proposed area was close to the meeting house. The 1937 taking
was carried out after the Public Works Department had backed down from a proposal to
acquire a portion of the land that had been taken in 1917 for a town hall site. The area that
was taken from Block XIVA was considerably larger than the area that the Department had
planned to take from the Taumarunui Borough Council. This decision seems to have been
made by the local officers of the Public Works Department, and was not questioned by
head office. It may be that the Department was inclined to take more liberally when dealing
with vacant and unoccupied Maori land. Showing some consideration of the owners’
230
interests, and anticipating that there might be an objection, the District Engineer selected an
area that would limit the impact of the taking on the meeting house and dwellings.
Evidence concerning the 1915 and 1937 takings indicates that the owners were adequately
notified of the intention to take the land. This seems apparent from the objections that were
lodged in connection with both acquisitions, which show that at least some owners were
aware of the proposed takings. It appears that these owners may have learnt of the takings
through informal contact with local officers of the Public Works Department, rather than
the formal process of newspaper and Gazette notification. This would seem to explain how
Tuao knew of the taking when she lodged an objection in January 1915, prior to the
publication of the notice of intention to take.
The 1915 and 1937 takings from Block XIVA raise significant questions concerning the
extent to which the objection process provided a protection for owners of land required for
Public Works purposes. The objections made in connection to the 1915 and 1937 takings
were dismissed by head office of the Public Works Department without any attempt to
examine the owners’ concerns. If the objections had been given greater attention, the
Department would probably have gained a greater awareness of Block XIVA’s importance
as an area of remaining reserve land. However, it seems that the Department may have
believed that there were no grounds for objection except in cases where statutory
requirements had not been satisfied. It is notable that the 1915 and 1937 takings were
recommended for proclamation without the Minister being alerted to the fact that objections
had been made. This was either a procedural oversight or a deliberate strategy that was
followed for reasons of expediency. It is unclear whether the manner in which the
Department dealt with the 1915 and 1937 objections was common, or whether such a
approach was applied only when land was in Maori ownership, perhaps reflecting a culture
of prejudice within the Department.
The assessment of compensation for the takings from Block XIVA shows, once again, that
the owners were often not represented during the proceedings. This was the case when
compensation was determined for the 1915 and 1937 takings. At the time of the 1911,
231
1915, and 1917 takings, the land was vested in the Waikato-Maniapoto Maori Land Board,
a responsibility that should have seen the Board represented at all three compensation
cases. Though the Board was not present at the 1911 hearing, it agreed to the sum offered
by the Public Works Department. During the assessment for the 1915 taking, the Court
provided some protection of the owners’ interests by checking that the Department’s offer
was based on current values. Compensation for all of the takings from Block XIVA was
assessed in accordance with government valuations, which appears to have been standard
practice. When the Borough Council offered compensation for the 1917 taking that was
considerably lower than the government valuation, the Court reasoned that it did not have
the authority to review a value that had been determined by the Assessment Court.
The recent return of the land taken in 1911 and 1915, as well as a small portion of the land
acquired in 1917, appears to be an example of a disposal undertaken in accordance with the
offer back provisions of the 1981 Act. Without further research, it is unclear whether those
who received the land comprised all the descendants of the former owners.
232
~E
o
o
•
.
.
Figure 11: Taumarunui Hospital Site (Source: SO 470, Taranaki Land District,
LINZ)
233
Chapter 8: Urban Amenities – Taumarunui Hospital (1917)
8.1 Introduction
On 24 January 1917, 38 acres 20 perches was taken from Ohura South N 2E 1 for the site
of Taumarunui Hospital. The taking was carried out by the Public Works Department on
behalf of the Taumarunui Hospital and Charitable Aid Board under the provisions of the
Public Works Act 1908 and the Hospitals and Charitable Institutions Act 1909. The
Taumarunui Hospital and Charitable Aid Board had issued a notice of intention to take the
land on 21 June 1915. The taken land had been held by Maori under Crown derived title.
On 19 November 1917, the Native Land Court ordered that compensation of £832 be paid
to the owners. Today, the taken land is held by Health Waikato Limited and continues to be
used as the site of Taumarunui Hospital.624
8.2 Background
Efforts to establish a public hospital in Taumarunui arose from the healthcare needs of an
increasing population in both the township and surrounding area. The number of Europeans
living in the district grew steadily after the Main Trunk railway reached Taumarunui in the
early years of the twentieth century. The district was initially served by a cottage hospital
connected to the Waikato Hospital and Charitable Aid Board, but by 1913 there was ‘strong
agitation’ in Taumarunui for a separate hospital district and a new hospital.625 During a
meeting with the Minister of Public Works in September 1916 – when steps to acquire land
from Ohura South N 2E 1 were in progress – members of the Taumarunui Chamber of
Commerce asserted that there had been a large increase in the number of patients using the
existing cottage hospital.626 They described the hospital building to be ‘altogether
624
CT TNJ4/376, South Auckland Land District, LINZ.
N A Winter, Taumarunui Old and New: An Illustrated Record of the Growth of a New Zealand Town, The
Taumarunui Press Limited, Taumarunui, 1913, p 15.
626
Notes of a meeting between the Minister of Public Works and Taumarunui Chamber of Commerce, 20
September 1916, AAQB W3950 24/1818/0, Hospitals – Taumarunui Land and Legislation, 1915-1973, ANZ
Wellington.
625
234
inadequate’, and pointed out that there was no accommodation for infectious disease cases.
Also, the hospital had to deal with a large number of accidents involving bushmen who
worked in the surrounding forest areas.
The Taumarunui Hospital and Charitable Aid Board appears to have been constituted early
in 1915, with the first meeting of the Board held on 10 April 1915.627 Under section 59 of
the Hospitals and Charitable Aid Boards Act 1909, Hospital and Charitable Aid Boards
were empowered to take lands under the Public Works Act 1908 for existing institutions or
institutions that were to be established with the consent of the Minister. Such takings were
to be carried out ‘as if the institutions were a public work and the Board were a local
authority within the meaning of that Act’.628
8.3 The Taking
After its establishment, the Taumarunui Hospital and Charitable Aid Board took little time
in choosing part of Ohura South N 2E 1 as the site for a new hospital. No file evidence has
been located relating to the selection of the site, and it is therefore unclear whether
alternative lands were considered by the Board. In May 1915, an area of 38 acres 2 roods of
Ohura South N 2E 1 was surveyed for the Board in preparation for taking.629 The plan of
this survey, which is presented as Figure 11, shows that the hospital site is located on the
western side of the confluence of the Whanganui and Ongarue Rivers, lying across the
Ongarue River from the main part of Taumarunui township. Figure 11 also shows that the
hospital site surrounded Ohura South N 2E 2, which contained an urupa. This land was
positioned on the Ongarue River, and by land could only be accessed through Ohura South
N 2E 1. The total area of Ohura South N 2E 1 was 115 acres 3 roods.630
627
New Zealand Gazette, 1915, no. 44, p 965.
Section 59, Hospitals and Charitable Institutions Act 1909.
629
SO plan 4780, Taranaki Land District, LINZ.
630
Otorahanga minute book 52, 7 June 1910, pp 329-330.
628
235
Ohura South N 2E 1 and Ohura South N 2E 2 both belonged to Kimihia Marumaru and
four minors.631 Pukaka Werata, who also appears to have been known as Te Aohau Werata,
acted as trustee for the minors’ interests.632 The owners of Ohura South N 2E 1 expressed
their opposition to the proposed taking before the Board had given formal notice of its
intention to take. It is unclear whether the Board discussed the taking with the owners, or
whether they were alerted to the matter when their land was surveyed. On 14 May 1915,
Kimihia Marumaru and unnamed ‘others’ wrote to the Minister of Public Works, protesting
at the taking, which they believed had been finalised: ‘We hereby entreat you re our land
which has been taken under the Public Works Act as a Hospital site, etc. We do not agree to
sell it inasmuch as we have already improved the land and built fences.’633 Though
addressed to the Minister of Public Works, the letter appears to have been sent to Maui
Pomare (MHR), who forwarded it to the Minister of Public Works on 19 July 1915.634
In the meantime, on 21 June 1915, a notice of intention to take land from Ohura South N
2E 1 for ‘a site for the erection and establishment of a public hospital’ was issued by the
Taumarunui Hospital and Charitable Aid Board under the provisions of the Public Works
Act 1908.635 The notice detailed that a plan of the required land had been prepared and was
available for inspection at the Taumarunui courthouse. It was explained that any objections
to the proposed taking were to be made in writing to the Chairman of the Board within 40
days of publication of the notice.
On 29 July 1915, the Assistant Under-Secretary of Public Works wrote to the Resident
Engineer in Taumarunui, requesting a report on the proposed taking.636 He outlined the
contents of Marumaru’s letter of objection, and noted that the taking had yet to be referred
631
Strang to Under-Secretary, Public Works, 19 August 1915, AAQB W3950 24/1818/0, ANZ Wellington.
Resident Engineer to Under-Secretary, Public Works, 30 September 1915, AAQB W3950 24/1818/0, ANZ
Wellington. When the compensation case was heard in August 1917, Te Aohau was stated to be the
representative of the minors interests. Otorohanga minute book 59, 2 August 1917, p 329.
633
Marumaru and others to the Minister of Public Works (translation), 14 May 1915, AAQB W3950
24/1818/0, ANZ Wellington.
634
Pomare to Minister of Public Works, 19 July 1915, on Marumaru and others to the Minister of Public
Works (translation), 14 May 1915, AAQB W3950 24/1818/0, ANZ Wellington.
635
New Zealand Gazette, 1915, no. 77, p 2167.
636
Assistant Under-Secretary to Resident Engineer, 29 July 1915, AAQB W3950 24/1818/0, ANZ
Wellington.
632
236
to the Public Works Department for proclamation. (As discussed in the Overview, it was
standard practice for the Public Works Department to administer the proclamation of local
authority takings, even though this was not a statutory requirement.) Reporting on 3 August
1915, the Resident Engineer explained that the land was required by the newly created
Taumarunui Hospital and Charitable Aid Board and that notice of intention to take had
been given.637 Stating that the site for the hospital had been approved by the Inspector
General of Hospitals, Dr Valentine, the Resident Engineer believed that it was ‘an excellent
one for [the] contemplated use.’ He detailed that improvements to the land comprised one
small shed or stable, some recent ploughing, and the clearing of scrub. The Resident
Engineer stated that he was unaware of any reason for objection other than the owners
wanting to retain the land for either their own use or for selling later at a greater price. He
believed that there were about four or five Maori with an interest in the land.
Upon receiving the Resident Engineer’s report, the Assistant Under-Secretary prepared a
memorandum on the proposed taking for the Minister of Public Works.638 The Assistant
Under-Secretary noted the owners’ objection to the taking and alerted the Minister to the
report provided by the Resident Engineer. He also pointed out that there were graves on
adjacent land, which would be excluded from the taking. Stating that the desired land
appeared ‘to be somewhat large for a mere country hospital’, the Assistant Under-Secretary
asked whether the government had any objection to the proposed taking. The matter was
put before Cabinet on 17 August 1915 and 6 September 1915, but was held over for later
consideration.639
On 19 August 1915, the Board’s solicitor, J T Strang, wrote to the Under-Secretary of
Public Works, requesting that a proclamation be issued for the taking of the hospital site.640
Strang advised that no objections had been lodged with the Board. It is unclear whether he
was aware of the owners’ opposition, or simply believed – for reasons of expediency – that
637
Resident Engineer to Under-Secretary, 3 August 1915, AAQB W3950 24/1818/0, ANZ Wellington.
Short to Minister of Public Works, 5 August 1915 (incorrectly dated 5 July 1915), AAQB W3950
24/1818/0, ANZ Wellington.
639
Cabinet notes on Short to Minister of Public Works, 5 August 1915 (incorrectly dated 5 July 1915), AAQB
W3950 24/1818/0, ANZ Wellington.
640
Strang to Under-Secretary, Public Works, 19 August 1915, AAQB W3950 24/1818/0, ANZ Wellington.
638
237
this could be overlooked because they had not objected in accordance with the statutory
provisions, which required a letter written to the Board within 40 days of first notification.
Stating that the procedure of Part 2 of the 1908 Act had been followed, Strang enclosed a
number of documents with his letter, which would enable the proclamation to be issued in
accordance with statutory requirements: a memorial of the Board, a supporting declaration
by the Chairman, a schedule of the land provided by the Chief Surveyor, and duplicate
plans of the land.
On 3 September 1915, the Assistant Under-Secretary wrote to the Resident Engineer in
Taumaranui, once again asking him to provide a report on the proposed taking for the
hospital site.641 This appears to have been a standardised letter, which was used at this time
to monitor all local authority takings under the Public Works Act. The letter requested the
Resident Engineer to state:
whether you know of any objection to the taking of the land for the purpose mentioned, and
particularly whether there are any buildings, yards, gardens, orchards, vineyards, or
ornamental parks or pleasure grounds or burial-grounds on the land proposed to be taken.642
The existence of any of these features required the consent of the Governor in Council
before land could be taken.643 The Assistant Under-Secretary made an addition to the
standardised letter, asking the Resident Engineer to establish ‘whether more land is
proposed to be taken than is required for the purpose.’644
Replying on 30 September 1915, the Resident Engineer reported that he had observed none
of the specified features on the proposed hospital site, with the exception of a small shed
and an area of ground in oats. He stated that the minors’ trustee, Pukaka Werata, had
informed him that there was no burial ground on the land. The Resident Engineer also
advised that Werata had stated that the owners wished to retain the land for farming
641
Assistant Under-Secretary, Public Works, to Resident Engineer, 3 September 1915, AAQB W3950
24/1818/0, ANZ Wellington.
642
Ibid.
643
Section 94, Public Works Act 1908.
238
purposes, and had claimed that £50 an acre had been offered for the land. Though he could
not verify this offer, Resident Engineer thought it was ‘probably incorrect’. With regard to
the issue of area, the Resident Engineer believed it to be ‘more . . . than is required for the
purpose.’ He explained that the Board had stated that it wished to make the hospital selfsupporting by running a small farm on the land. As the Maori owners were opposed to the
taking, the Resident Engineer felt the Board should ‘do with less.’ Noting that there was
only river access to the adjoining urupa, Ohura South N 2E 2, he suggested that, if the area
to be taken was diminished, the owners should retain land alongside the urupa.
Anxious to have the taking finalised, the Taumarunui Hospital and Charitable Aid Board
sought to hasten the issuing of the proclamation. In September, October, and November
1915, Strang, the Board’s solicitor, made a number of enquiries to the Public Works
Department concerning progress with the proclamation.645 In each instance, he was advised
that the matter remained under consideration.646 On 27 October 1915, the Chairman of the
Board, A S Laird, raised the matter in a letter written to Joseph Ward (MHR).647 Laird
explained that the taking was delayed even though the Board had complied with all legal
requirements. He stated that no objections had been lodged with the Board, and claimed
that the owners had begun enquiring about the price they would receive for their land.
Suggesting that the land was required urgently, Laird informed Ward that the existing
hospital buildings could no longer meet the district’s needs. He also advised that enquiries
made to the Public Works Department had been consistently met with the reply that the
matter remained under consideration by Cabinet.
644
Assistant Under-Secretary, Public Works, to Resident Engineer, 3 September 1915, AAQB W3950
24/1818/0, ANZ Wellington.
645
Strang to Under-Secretary, Public Works, 3 September 1915 (telegram), AAQB W3950 24/1818/0, ANZ
Wellington; Strang to Under-Secretary, Public Works, 23 October 1915 (telegram), AAQB W3950
24/1818/0, ANZ Wellington; Strang to Under-Secretary, Public Works, 5 November 1915 (telegram), AAQB
W3950 24/1818/0, ANZ Wellington.
646
Short to Strang, undated (telegram), AAQB W3950 24/1818/0, ANZ Wellington; Short to Strang, 26
October 1915 (telegram), AAQB W3950 24/1818/0, ANZ Wellington; Short to Strang, 5 November 1915
(telegram), AAQB W3950 24/1818/0, ANZ Wellington.
647
Chairman, Taumarunui Hospital and Charitable Aid Board, to Ward, 27 October, AAQB W3950
24/1818/0, ANZ Wellington.
239
Laird’s letter to Ward was referred to both the Minister of Public Works and the Minister
for Public Health.648 Commenting on the letter in a memorandum dated 24 November 1915,
the Inspector General of Hospitals, Dr Valentine, informed the Minister of Public Health
that the matter lay entirely with the Public Works Department.649 In the meantime, on 6
November 1915, the Secretary of the Taumarunui Hospital and Charitable Aid Board had
written directly to the Minister of Public Works, informing him that the Board had passed a
resolution expressing ‘its dissatisfaction at the unreasonable delay in gazetting that piece of
land required for a Hospital Site’.650 The Secretary asked that the taking be immediately
proclaimed. A similar letter appears to have also been sent to the Native Minister.651 The
Native Department, unaware of the proposed taking for the hospital site, requested details
from the Public Works Department.652
When the Board’s solicitor, Strang, once more enquired about the proclamation on 3
December 1916, he was advised that the matter had not yet been finalised because the
Minister of Public Works was consulting with the Native Minister over the issue.653 The
matter was put before Cabinet again on 4 December 1915. Prior to the Cabinet meeting, the
Native Minister, William Herries, appears to have examined the Public Works file of the
taking. On 3 December 1915, he commented on the proposed taking in a note written to the
Minister of Public Works, William Fraser.654 Herries stated that he had no objection to the
taking, though he believed ‘it would have been better if less land were taken.’ He thought
that it would be unusual for such a large area to be acquired under the Public Works Act.
Herries suggested that ‘for the natives sake’ a road or right of way should be made to the
urupa. No decision was made when the matter was brought before Cabinet on 4 December
648
Cabinet notes on Ward to Chairman, Taumarunui Hospital and Charitable Aid Board, 28 October 1915,
AAQB W3950 24/1818/0, ANZ Wellington.
649
Inspector General of Hospitals to Minister of Public Health, 24 November 1915, AAQB W3950
24/1818/0, ANZ Wellington.
650
Secretary, Taumarunui Hospital and Charitable Aid Board, to Minister of Public Works, 6 November
1915, AAQB W3950 24/1818/0, ANZ Wellington.
651
Secretary, Taumarunui Hospital and Charitable Aid Board, to Minister of Native Affairs, 6 November
1915, AAQB W3950 24/1818/0, ANZ Wellington.
652
Under-Secretary, Native Department, to Under-Secretary, Public Works, 17 November 1915, AAQB
W3950 24/1818/0, ANZ Wellington.
653
Strang to Under-Secretary, Public Works, 3 December 1915 (telegram), AAQB W3950 24/1818/0, ANZ
Wellington; Blow to Strang, 3 December 1915 (telegram), AAQB W3950 24/1818/0, ANZ Wellington.
240
1915, though Fraser noted that Herries and himself had expressed the opinion that an access
road to the urupa should be laid off ‘in view of the large area proposed to be taken.’655 It
appears that the size of the area intended for taking was not discussed, even though it was
thought to be unusually large.
When Cabinet considered the proposed taking again on 24 December 1915, it was
determined that the matter should be held over for three months to avoid incurring any
expenses during the existing financial year.656 The financial constraints of a wartime
economy appear to have become the main obstacle preventing the taking from being
proclaimed. Funds would be required not only for the acquisition of the land, but more
significantly, the subsequent construction of the new hospital. Though the matter had been
held over by Cabinet, the Minister of Public Health, G W Russell, raised the issue with the
Minister of Public Works, Fraser, in a letter written on 6 January 1916.657 It was explained
by Russell that another letter had been received from the Chairman of the Taumarunui
Hospital and Charitable Aid Board, who had again expressed frustration at the delay in
finalising the taking. The Chairman had claimed that the site, deemed to be very suitable
for the new hospital, could be obtained relatively cheaply at an estimated cost of £400. In
reply, Fraser reminded Russell that the matter of the acquisition had been held over for
financial reasons.658 Russell then advised Fraser that the matter was urgent and asked
whether it could be again brought before Cabinet. Claiming that it was ‘merely a question
of securing a very eligible site’, Russell stated that he would attempt to hold up work on the
new hospital until after the war had concluded. 659
Around this time, the Board – seemingly frustrated at the delay in obtaining the hospital
site under the Public Works Act – attempted to purchase the land from the owners. These
654
Herries to Minister for Public Works, 3 December 1915, note on Short to Minister of Public Works, 5
August 1915 (incorrectly dated 5 July 1915), AAQB W3950 24/1818/0, ANZ Wellington.
655
Fraser, minute, 4 December 1915, AAQB W3950 24/1818/0, ANZ Wellington.
656
Minister of Public Works to Minister of Public Health, 15 January 1916, note on Minister of Public Health
to Minister of Public Works, 6 January 1916, AAQB W3950 24/1818/0, ANZ Wellington.
657
Minister of Public Health to Minister of Public Works, 6 January 1916, AAQB W3950 24/1818/0, ANZ
Wellington.
658
Minister of Public Works to Minister of Public Health, 15 January 1916, note on Minister of Public Health
to Minister of Public Works, 6 January 1916, AAQB W3950 24/1818/0, ANZ Wellington.
659
Russell to Minister of Public Works, 17 January 1916, AAQB W3950 24/1818/0, ANZ Wellington.
241
negotiations were discussed in August 1917, when the Native Land Court assessed
compensation for the taking. The Board’s representative at the hearing, Mr Strang, recalled
that the owners had been offered £15 an acre for the land ‘about 2 years ago’.660 He also
stated that, at the request of the Minister of Internal Affairs, the owners were asked what
sum they would accept for the land. (Russell, the Minister of Public Health, was also the
Minister of Internal Affairs.) Strang told the Court that Te Aohau Werata, representing four
of the five owners, had agreed to sell the land for £1100. He stated that a letter detailing this
offer, written on 19 April 1916, had been sent to the Minister. George Booth, licensed
interpreter of Taumarunui, also spoke of these events during the compensation hearing.661
Booth informed the Court that he had been instructed by the Board to interview the owners
of the land and had acted as interpreter when Te Aohau Werata signed the letter dated 19
April 1916. Another witness, Alexander Laird, Chairman of the Board, told the Court that
he believed the letter had ‘covered all the owners’.662 No file evidence relating to these
negotiations has been located. The offer to sell the land for £1100 was probably rejected as
being too expensive. As detailed below, a government valuation carried out in July 1916
found the land to have a capital value of £425.
Following from the correspondence that had been exchanged early in January 1916
between the Minister of Public Health and the Minister of Public Works, Cabinet
considered the proposed taking from Ohura South N 2E 1 several further times between
January and May 1916.663 On 8 May 1916, a Cabinet minute detailed that the issue had
finally been ‘dealt with’.664 However, when the Assistant Under-Secretary of Public Works
inquired whether this meant the taking could be proclaimed, the Minister of Public Works
referred the matter to the Minister of Public Health.665 In a memorandum written on 9 July
1916, the Minister of Public Health expressed the opinion that the whole of the area
660
Otorahanga minute book 59, 2 August 1917, p 329.
Ibid, p 332.
662
Ibid, p 333.
663
Cabinet notes on Blow to Strang, 3 December 1915 (telegram), AAQB W3950 24/1818/0, ANZ
Wellington.
664
Cabinet note, 8 May 1916, on Blow to Strang, 3 December 1915 (telegram), AAQB W3950 24/1818/0,
ANZ Wellington.
665
Assistant Under-Secretary, Public Works, to Minister of Public Works, 10 May 1916, AAQB W3950
24/1818/0, ANZ Wellington; note, Minister of Public Works, 31 May 1916, on Assistant Under-Secretary,
Public Works, to Minister of Public Works, 10 May 1916, AAQB W3950 24/1818/0, ANZ Wellington.
661
242
proposed for taking should be acquired while the land was affordable.666 He detailed that a
recent government valuation had found the 38 acres 20 perches to have a capital value of
£425, which comprised an unimproved value of £380 and improvements of £45. Claiming
that this would not be a large sum to pay for the land, the Minister of Public Health
believed that the acquisition of all of this land was in the Board’s best interests:
It is much better that a Board should have sufficient property than that in years to come it
should be forced to purchase more land at a very high figure. There are many instances of
Hospital Boards possessing more land than they actually require, who find themselves in
possession of valuable property, which they can, with the Minister’s consent, realise and
utilise the proceeds for building and for capital purposes.667
The Minister recommended that the matter again be placed before Cabinet once.
Accordingly, on 9 August 1916, Cabinet considered the issue once more, and this time
approval was given for the land to be taken under the Public Works Act.668
On 15 August 1916, the Under-Secretary of Public Works wrote to the Chief Health
Officer, asking whether formal consent for the establishment of the new hospital had been
given in accordance with the provisions of the Hospitals and Charitable Institutions Act
1909.669 Explaining that land could only be taken for legally authorised work, he stated that
the consent – ‘a mere technicality’ – had to be obtained before the proclamation could be
issued. On 18 September 1916, the Deputy Chief Health Officer wrote to the UnderSecretary of Public Works, forwarding a declaration of consent that had been made by the
Minister of Public Health in accordance with section 61(3) of the Hospitals and Charitable
Institutions Act 1909.670 The declaration recorded that the Minister had consented ‘to the
establishment by the Taumarunui Hospital and Charitable Aid Board, of a new institution
666
Minister of Public Health to Minister of Public Works, 19 July 1916, AAQB W3950 24/1818/0, ANZ
Wellington.
667
Ibid.
668
Cabinet note, 9 August 1916, on Minister of Public Health to Minister of Public Works, 19 July 1916,
AAQB W3950 24/1818/0, ANZ Wellington.
669
Under-Secretary, Public Works, to Chief Health Officer, 15 August 1916, AAQB W3950 24/1818/0, ANZ
Wellington.
670
Deputy Chief Health Officer to Under-Secretary, Public Works, 18 September 1916, AAQB W3950
24/1818/0, ANZ Wellington.
243
on land situated at Part Ohura South N No 2E Sec 1 . . . to be acquired under the Public
Works Act, 1908.’671 This consent, though it enabled the proclamation to proceed, provided
no indication of whether the whole of the 38 acres 20 perches was required for the work.
The Public Works Department appears to have been content to allow the Board to acquire
all of the land without establishing the exact land requirements for the new hospital.
Having received the Minister of Public Health’s declaration of consent, the Public Works
Department began taking steps to issue the necessary proclamation. On 5 October 1916, the
Under-Secretary provided the Minister of Public Works with a proclamation that had been
prepared for signing. In an accompanying note, the Under-Secretary noted that it had earlier
been suggested that a right of way should be laid off to the burial ground.672 The
proclamation was not signed at this time, as it was decided that the matter should once
again be brought to the attention of Native Minister Herries.673
On 31 October 1916, the Board’s solicitor, Strang, discussed issues concerning the burial
ground in a letter written to Russell, the Minister of Public Health.674 Strang pointed out
that the urupa was not included in the area that the Board wished to acquire, having been
partitioned by the Native Land Court on 7 June 1910. With regard to access, he claimed
that the title to the 38 acres 20 perches could ‘only issue subject to right of access to the
owners of No 2 to and from their property.’ Strang hoped that his letter would remove any
concerns concerning the urupa, enabling the proclamation to be issued forthwith. The
Under-Secretary of Public Works contested Strang’s view that any existing right of access
would remain if the land was taken by proclamation. He explained to the Minister of Works
that the proclamation would ‘destroy all prior rights and . . . vest the land in fee simple
671
Minister of Hospitals and Charitable Aid [Public Health], declaration of consent, 11 September 1916,
AAQB W3950 24/1818/0, ANZ Wellington.
672
Under-Secretary, Public Works, to Minister of Public Works, 5 October 1916, AAQB W3950 24/1818/0,
ANZ Wellington.
673
Note, undated, on Under-Secretary, Public Works, to Minister of Public Works, 5 October 1916, AAQB
W3950 24/1818/0, ANZ Wellington.
674
Strang to Russell, 31 October 1916, AAQB W3950 24/1818/0, ANZ Wellington.
244
unencumbered in the Hospital Board.’675 The Under-Secretary suggested that the Board
should guarantee access to the urupa before the proclamation issued.
Upon the direction of the Minister, the opinion of the Crown Law Office was sought.676
Writing to the Solicitor General on 15 November 1916, the Under-Secretary outlined the
question of the owners’ ongoing access to the urupa.677 Pointing to section 19 of the Public
Works Act 1908, he expressed the view that any existing rights of access would be
cancelled upon proclamation because the land would be vested in fee simple, discharged
from all interests of any kind whatsoever. The Under-Secretary suggested that, following
proclamation, an easement or right of way could be created over the land in accordance
with the section 34 of the 1908 Act. Replying on 21 November 1916, the Crown Solicitor
stated that he concurred with the Under-Secretary’s view of the matter.678 The UnderSecretary then wrote to the Minister of Public Works, recommending that the proclamation
not be issued until a binding agreement had been reached with the Board, requiring that a
right of access to the urupa be created immediately after the issuing of the proclamation.679
It appears that the Minister concurred with this recommendation. On 28 November 1916,
the Under-Secretary of Public Works wrote to the Board’s solicitor, Strang, informing him
that an agreement on access was required before the proclamation could proceed.680 He
explained that an easement or right of way could be granted by the Board under section 34
of the 1908 Act. On 8 December 1916, the Minister of Public Health telegraphed the Native
Minister, explaining that the Board was prepared to create a right of access to the urupa.681
In reply, the Native Minister stated that he would be satisfied as long as a road was made to
675
Under-Secretary, Public Works, to Minister of Public Works, 11 November 1916, AAQB W3950
24/1818/0, ANZ Wellington.
676
Minister of Public Works, note, 13 November 1916, on Under-Secretary, Public Works, to Minister of
Public Works, 11 November 1916, AAQB W3950 24/1818/0, ANZ Wellington.
677
Under-Secretary, Public Works, to Crown Solicitor, 15 November 1916, AAQB W3950 24/1818/0, ANZ
Wellington.
678
Crown Solicitor to Under-Secretary, Public Works, 21 November 1916, AAQB W3950 24/1818/0, ANZ
Wellington.
679
Under-Secretary, Public Works, to Minister of Public Works, 22 November 1916, on Crown Solicitor to
Under-Secretary, Public Works, 21 November 1916, AAQB W3950 24/1818/0, ANZ Wellington.
680
Under-Secretary, Public Works, to Strang, 28 November 1916, AAQB W3950 24/1818/0, ANZ
Wellington.
681
Russell to Herries, 8 December 1916 (telegraph), AAQB W3950 24/1818/0, ANZ Wellington.
245
the burial ground.682 After later discussing this matter with the Minister of Public Works,
the Native Minister agreed to the proclamation issuing with an undertaking to create a right
of access without a formed road.683
On 14 December 1916, Strang wrote to the Under-Secretary on 14 December 1916,
enclosing a declaration of undertaking signed by the Chairman and another member of the
Board.684 Dated 12 December 1916, the declaration guaranteed that a right of access would
be created by the Board:
so soon as a proclamation vesting in it the freehold in fee simple of that piece of land situate
in the Land District of Taranaki containing 38 Acres and 29 Perches . . . called or known as
portion of Ohura South N Section 2E Number 1 is issued, it will forthwith grant to the Native
owners of the adjoining block of land described in the nature of a permanent right of access
to the said block of land described as Ohura South N 2E No 2.685
Having received the Board’s declaration, the Under-Secretary wrote to the Minister of
Public Works, recommending that he sign the proclamation for the taking of the 38 acres 20
perches from Ohura South N 2E 1.686 He explained that the Board had undertaken to create
a right of access for the owners of the urupa, and noted that the Board had fulfilled the
preliminary requirements of both the Public Works Act 1908 and the Hospital and
Charitable Institutions Act 1909. The Under-Secretary also advised that the Board would be
responsible for the payment of compensation. The proclamation was signed by the
Governor on 23 December 1916 and took effect on 24 January 1917.687 As well as
appearing in the New Zealand Gazette, a copy of the notice of the taking was also published
in The Taumarunui Press on 20 January 1917.688
682
Herries to Russell, 11 December 1916 (telegraph), AAQB W3950 24/1818/0, ANZ Wellington.
Minister of Public Works, note, 22 December 1916, on Under-Secretary, Public Works, to Minister of
Public Works, 22 December 1916, AAQB W3950 24/1818/0, ANZ Wellington.
684
Strang to Under-Secretary, Public Works, 14 December 1916, AAQB W3950 24/1818/0, ANZ Wellington.
685
Declaration of undertaking by Taumarunui Hospital and Charitable Aid Board, 12 December 1916, AAQB
W3950 24/1818/0, ANZ Wellington.
686
Under-Secretary, Public Works, to Minister of Public Works, 18 December 1916, AAQB W3950
24/1818/0, ANZ Wellington.
687
New Zealand Gazette, 1917, no. 4, pp 16-17.
688
The Taumarunui Press, 20 January 1917, clipping enclosed with Strang to Under-Secretary, Public Works,
22 January 1917, AAQB W3950 24/1818/0.
683
246
In spite of the assurances that the Board had made prior to proclamation, it is evident that
no right of access to the urupa was ever created through the taken land.
8.4 Compensation
On 2 August 1917, the Native Land Court heard an application from the Taumarunui
Hospital and Charitable Aid Board for an assessment of compensation for the land taken
from Ohura South N 2E 1 for the hospital site.689 The Board was represented in Court by
Strang, while the owners were represented by a Mr Finlay. Presenting the Board’s
application, Strang described the location of the land and then explained that the Board had
attempted to purchase it from the Maori owners for £15 an acre.690 Claiming that the land
was unimproved except for some fencing, he informed the Court that that the government
valuation for the improvements was just £45. Strang detailed that the capital value was
£425, which was probably what the Board expected to pay in compensation. Finlay
objected to this valuation.691
The Court proceeded to hear a large amount of evidence relating to the valuation of the
taken land. Strang called several witnesses before the Court, the first of whom was Louis
Swanbrick, a licensed surveyor who had surveyed the taken land for the Board. During
cross-examination by Finlay, Swanbrick was questioned as to the suitability of the land as a
site for building. (Finlay apparently contended that the land – if it had not been taken –
would have been developed for residential as Taumarunui expanded.) Swanbrick told the
Court that the land was ‘as good as any in Taumarunui’ for building purposes.692 However,
he claimed that access was ‘not so good’, stating that the unmetalled road from Taumarunui
was ‘impassable at present’. Responding to Finlay’s questioning, Swanbrick spoke of
different properties around Taumarunui, providing details of the values of these lands and
comparing them to the taken hospital site. He detailed that he had recently paid £120 for a
689
Otorohanga minute book 59, 2 August 1917, pp 329-342.
Ibid, p 329.
691
Ibid, p 330.
692
Ibid.
690
247
two acre property of dry land at Matapuna, about one mile from Taumarunui, which had
good road access.693
At the conclusion of Swanbrick’s cross-examination, the Court heard briefly from licensed
interpreter George Booth, who gave evidence relating to the Board’s attempt to purchase
the land.694 The Court then heard from Alexander Laird, who was the local government
valuer and the Chairman of the Taumarunui Hospital and Charitable Aid Board. Laird
stated that he had carried out a valuation of the land, but did not provide the government
valuation that had been put before the Court.
695
This had been made by a Mr Coutts,
probably to avoid placing the Chairman in a position that might have been viewed as
involving a conflict of interest. Laird told the Court that he did not believe there was much
demand for residential building sites in Taumarunui. He claimed that there was an
abundance of land for such purposes, naming Rangaroa and Matapuna as two areas that
could be further developed. He noted that access to the hospital site was ‘very bad at
present’.696
During cross-examination by Finlay, Laird discussed the values of various Taumarunui
lands, including some of the areas earlier spoken of by Swanbrick. Some of this evidence
compared these lands with the hospital site in terms of access and suitability for residential
development. Laird was questioned, for example, about 12 acres on the eastern side of the
Whanganui River that had recently been purchased for £200 from the Whanganui River
Trust Board.697 When asked to compare the hospital site with Rangaroa, he stated that the
‘front parts’ of the hospital site were ‘equally suitable’ for residential sites. Laird told the
Court that he had valued one Rangaroa section, in a settled neighbourhood, at £180 an
acre.698
693
Ibid, p 331.
Ibid, p 332.
695
Ibid, p 333.
696
Ibid, p 334.
697
Ibid, p 335.
698
Ibid, pp 335-336.
694
248
The next witness to appear before the Court was Te Kuiti district valuer Joseph Coutts, who
had carried out the government valuation of the hospital site. Coutts thought that part of
this land was suitable for residential purposes, but claimed that there was a great deal of
similar land available in Taumarunui that was already subdivided and served by metalled
roads.699 He believed that, under existing circumstances, the land taken for the hospital site
would not sell if it was ‘cut up’. Coutts told the Court that there was ‘no demand for it at
present’. He compared the taken land with another piece of land, ‘the Chinamans garden’,
which he had valued at £120 and acre. This land, Coutts explained, was more suitable for
residential development because it was significantly closer to town.
Coutts was cross-examined by Finlay, the owner’s representative. During the course of this
questioning, he told the Court that he would not have valued the taken land at £4 an acre if
it had not been for its ‘position’, which presumably referred to the land’s proximity to
Taumarunui. Coutts stated that he had not based his valuation on the sale records of
surrounding lands, explaining that he considered the sums paid to be excessive.700 He told
the Court that all the values in Taumaranui had recently been reduced.
Following Coutts, who was the last of Strang’s witnesses, Finlay called Taumarunui land
valuer Charles Smith before the Court. Outlining his qualifications, Smith stated that he had
been the government valuer in Taumarunui for 8 years, but was now working
independently.701 Smith informed the Court that he estimated that the 38 acres 20 perches
taken for the hospital site possessed a capital value of £1799. He considered that the land
had an unimproved value of £1740, with improvements of £59. Smith explained that this
valuation was based on a comparison of values and sales of other lands. He proceeded to
provide details relating to some of these lands. The Court heard, for example, that Smith
had examined the government valuations of Rangaroa land, calculating that sections
comprising an area of 172 acres 2 roods 8 perches possessed a total value of £19,160, an
average of £111 10s an acre.702 He thought that the front 40 acres of Rangaroa were ‘about
699
Ibid, p 337.
Ibid, p 338.
701
Ibid, p 339.
702
Ibid, p 340.
700
249
equal’ to the hospital site, though claimed that the latter was ‘better land’. Smith claimed
that if the road between the hospital site and the township was not used by sawmillers the
quality of the access would be ‘much the same’ as that serving Rangaroa. He stated that he
was confounded by the recent government valuation: ‘I cannot understand the value put on
[the] hospital site by Laird and Coutts.’ During cross-examination by Strang, Smith
asserted that all of the taken land was capable of being subdivided.703 He also claimed that
roading the site would be neither difficult nor expensive. The compensation case closed at
the conclusion of Smith’s evidence.
When the Court gave its decision on 19 November 1917, the Judge explained that he had
not been able to make the assessment with any sense of precision:
It is impossible to reconcile the evidence. Having personally inspected the land & several of
the properties referred to in the evidence I am of opinion that the value of the Hospital site
would largely depend on what demand there may be for residence sites in Taumarunui & in
what direction the town may spread. Here again the evidence helps me little. I am of opinion
that there will be little demand for a considerable time to come for residence sites on this
property. There seems to me to be too much land already available in more settled parts to
which the average person will naturally turn first. But no one could say there would be no
demand at all especially at the upper end.704
The Board was ordered to pay compensation of £832 for the land taken from Ohura South
N 2E 1, which was £400 more than the government valuation. In awarding this sum, the
Judge considered that the ‘expropriated’ Maori owners had been ‘entitled to the benefit of
any doubt’. The compensation was to be paid to the owners in accordance with their
relative interests.
8.5 Conclusion
703
704
Ibid, p 342.
Otorahanga 60, 19 November 1917, p 18.
250
The owners of Ohura South N 2E 1 objected to the taking of the hospital site before the
Taumarunui Hospital and Charitable Aid Board had notified its intention to take. It is
unclear whether the Board had approached the owners regarding the matter or whether the
owners had become aware of the proposal when the required land was surveyed. As the
objection was not addressed to the Board, it did not constitute a formal objection in terms
of Public Works legislation. Nevertheless, it was acknowledged by head office. From
comments made by Pukaka Werata, it seems that the owners wished to retain the land for
farming purposes. They may also have had expectations that the land would appreciate in
value owing to its proximity to Taumarunui. It is unclear whether a further consideration
may have been the fact that the hospital site would surround an urupa contained within
Ohura South N 2E 2.
It seems clear that the 38 acres 20 perches taken for the site of Taumarunui Hospital was
greater than the area required for the necessary buildings. The Resident Engineer reported
that the Board wished to establish a farm on the land to make the hospital self-supporting.
This situation was first recognised by the Assistant Under-Secretary of Public Works, who
noted that it appeared to be ‘somewhat large for a mere country hospital’. The Resident
Engineer believed that, given the owners’ objection, the area proposed for taking should be
diminished, an opinion that was also held by the Native Minister. However, though the
matter caused some delay, neither head office of the Public Works Department nor the
Minister of Public Works took decisive action to ensure that the area was reduced. The
Board’s pressure on the Department and its lobbying of Joseph Ward would seem to partly
explain why the owners’ interests were overlooked. The Native Department showed little
concern for protecting the owners’ interests. The final decision on the taking seems to have
been left with the Minister of Public Health. He argued that the acquisition of excess land
was justified because it would provide the Board with enough land to expand and with a
valuable asset that could be sold to raise funds for future capital works. Prior to
proclamation, the Minister of Public Works and the Native Minister sought to ensure that
the owners retained access to the urupa. Though the Board signed a declaration that
promised the creation of a right of access, this never appears to have been fulfilled.
251
The owners clearly benefited from being represented during the Native Land Court’s
assessment of compensation. The owners’ representative contested the Board’s offer, which
was based on the government valuation. The evidence presented to the Court was both
complex and conflicting, and it seems evident from the judgment that the Court had found
that the case required an expertise it did not possess. Noting that its assessment was not
made with confidence, the Court determined compensation at a sum that was almost twice
as great as the government valuation. The Court, concerned for the owners’ interests, stated
that the benefit of the doubt lay with the owners because they had been ‘expropriated’.
252
Figure 12: Kauarapaoa Road Deviation (Source: SO 13161, Wellington Land
District, LINZ)
253
Chapter 9: Roading – Kauarapaoa Road (1890), Waiaruhe Road (1903),
Kawautahi Road (1922), and Whanganui River Road (1932)
9.1 Introduction
The four takings discussed in this chapter were all carried out between 1890 and 1930, the
period when most Maori land was acquired for roads in the Whanganui Inquiry District.
During this time, old roads were legalised and new roads were built. From 1930, it seems
that only relatively small areas of Maori land were taken for roads, generally being required
for realignment purposes.705 The takings that are examined in this chapter provide examples
of the different means by which the Crown obtained Maori land for roads. Unfortunately,
little archival evidence is available for any of these takings, which means that in each case
only a brief outline of the acquisition process can be provided. The five percent rule, which
is discussed in the Overview, was applied when land was taken from Puketarata block in
1891 and Raketapauma block in 1903. These takings, carried out by the Department of
Lands, were respectively executed under the provisions of the Native Land Court Act 1886
and the Public Works Act 1894. In accordance with the five percent rule, there is no
evidence of compensation having been paid in either of these cases. On 17 February 1922,
road-lines through Retaruke 4B and 4C were proclaimed Crown land under the Native
Land Amendment Act 1913. The Department of Lands and Survey was responsible for this
proclamation. No compensation was payable under the 1913 Act. On 6 October 1930, land
was taken from a number of blocks under the Public Works Act 1928 for a section of the
Whanganui River Road. This taking was carried out by the Public Works Department. On
30 June 1932, the Native Land Court determined that no compensation was payable for any
of the areas taken on 6 October 1930. All of the lands secured by the road takings examined
in this chapter remains in Crown ownership.
705
One significant later acquisition of Maori land for road purposes was the 1961 taking of areas of
Ngongohau block, which were required for the construction of a new bridge across the Whanganui River.
This taking is examined by Bassett and Kay in their report on the reserves of the 1848 purchase.
254
9.2 Kauarapaoa Road (1891) – Puketarata Block
On 5 August 1890, the Governor signed a warrant authorising the taking of 13 acres 2
roods from Puketarata block for a road. The road was surveyed in December 1890, and in
May 1891 the Minister of Lands gave notice of the taking in the New Zealand Gazette.706
The plan of the road details that the warrant had been issued under the Native Land Court
Act 1886. Section 93 of the 1886 Act continued the provision that enabled the Governor to
take up to five percent of Maori land for roads without compensation. It detailed that the
Governor could:
take and lay off for public purposes one or more line or lines of road . . . provided that the
total quantity of land which may be taken, inclusive of any already taken, for such line or
lines of road shall not exceed one-twentieth part of the whole.707
The road plan details that the land taken from Puketarata block was required for a deviation
of Kauarapaoa Road, which lay along the western side of the Kauarapaoa Stream. As
shown in Figure 12, the road-line through Puketarata block ran along the eastern side of the
Kauarapaoa Stream, and would therefore require the construction of two linking bridges.
Without file evidence, it is unclear whether the road was intended partly as a means of
improving access to Puketarata block, or whether it was planned entirely for the purpose of
providing a deviation of Kauarapaoa Road.
For reasons that are unclear, construction of the road deviation through Puketarata block
has never been undertaken. The road has not been formally closed, and the land forming the
road-line therefore remains in Crown ownership as a paper road.
706
707
SO 13161, Wellington Land District, LINZ; New Zealand Gazette, 1891, no. 39, pp 582-583.
Section 93, Native Land Court Act 1886.
255
Waitangi Tribunal, sep2004
.... Ruapehu
Waiaruhe Road
Figure 13: Waiaruhe Road
256
9.3 Waiaruhe Road (1903) – Raketapauma Block
On 22 November 1901, the Governor signed a warrant authorising the taking of 26 acres 1
rood 15 perches from Raketapauma 1F, 1G, and 1I3 for part of what is today known as
Waiaruhe Road. The following areas were taken from each subdivision:
Subdivision
Raketapauma 1F
Raketapauma 1G
Raketapauma 1I3
Total
Area taken
6a 2r 04p
12a 0r 27p
7a 2r 24p
26a 1r 15p
The location of the road is shown in Figure 9.2. The road was surveyed in October 1902,
and in May 1903 the Minister of Lands gave notice of the taking in the New Zealand
Gazette.708 The Gazette notice details that the warrant was issued under section 92 of the
Public Works Act 1894, which continued the provision enabling the Governor to take up to
five percent of Maori land for roads. Section 91(2) of the 1894 Act provided that this land
could be taken without the payment of compensation.
The plan of the road through Raketapauma 1F, 1G, and 1I3 included a declaration by
District Surveyor James Kay.709 As well as stating that no pa or village was affected by the
road, the declaration noted that on 6 March and 5 April 1901 a notice of intention to take
had been served upon the owners by post, with no response. It is unclear why the District
Surveyor choose to give notification prior to taking as this was not required under section
92 of the 1894 Act. It may be that notice was given in adherence to the general principles of
taking land for public works. Alternatively, the District Surveyor’s actions might indicate
that there was some confusion as to how the five percent rule was applied.
The land taken from Raketapauma block in 1903 continues to be used as a road and
remains in Crown ownership.
708
709
SO 14929, Wellington Land District, LINZ; New Zealand Gazette, 1903, no. 19, p 749.
SO 14929, Wellington Land District, LINZ.
257
Figure 14: Kawautahi Road
258
9.4 Kawautahi Road (1922) – Retaruke Block
On 12 December 1911, the Native Land Court laid off road-lines through Retaruke 4B and
4C under section 117 of the Native Land Act 1909.710 The total area of the road-lines was
39 acres 2 roods 18 perches, which was comprised of 7 acres 2 roods 2 perches from
Retaruke 4B and 32 acres 16 perches from Retaruke 4C. The road-lines were laid off while
the Court heard an application for the partition of Retaruke 4. Section 117(1) of the 1909
Act provided that the Court, when partitioning land, could lay off road-lines that it
considered to be ‘necessary or expedient for the due settlement and use of the several
parcels’. Section 117(2) empowered the Governor to proclaim such road-lines as public
roads, whereupon the land would become vested in the Crown.711 However, until such a
proclamation was issued, title to the road-lines remained with the Maori owners.712
The road-lines that the Court laid off through Retaruke 4B and 4C were part of a greater
roading system that extended beyond the boundaries of the two subdivisions. It may be that
the road-lines represented access tracks that were already in public use. The Court order
directed that, until the road lines were declared public roads, the land set apart should be
known as ‘Kauwautahi Valley Road Line, Ohuha Road Line, and Makokomiko Road
Line’.713 As shown in Figure 19, most of the land laid off from Retaruke 4B and 4C was for
Kauwautahi Road.
In October 1921, the Native Land Court initiated steps to have the road-lines through
Retaruke 4B and 4C proclaimed public roads. There was no immediate intention to
construct the roads at this time, though work was underway on the eastern end of
Kawautahi Road from Owhango.714 On 15 October 1921, the Deputy Registrar of the Court
wrote to the Under-Secretary of Lands and Survey, enclosing the Court order of 12
710
Wanganui minute book 61A, 12 December 1911, pp 152.
Section 117(2), Native Land Act 1909.
712
Section 117(3), Native Land Act 1909.
713
Order of the Court, 12 December 1911, LS 1 16/927, Retaruke 4B and 4C, ANZ Wellington.
714
Resident engineer to Under-Secretary, Public Works, 5 January 1923, W 1 39/116 part 2, Kawautahi Road,
1922-1930, ANZ Wellington. In this letter, the resident engineer stated that the Kawautahi Road gave access
711
259
December 1911 and a notice signed by Judge Acheson that stated that the road-lines should
be proclaimed public roads.715
In preparation for proclamation, the Under-Secretary wrote to the chief surveyor on 8
November 1921, requesting a tracing of the roads and a certified area schedule.716 On 28
November 1921, the Surveyor General wrote to the County Clerk of Kaiteke County
Council, giving notice of the intention to proclaim the road lines.717 This notification was
required by section 15 of the Native Land Amendment Act 1914. The road-lines were
proclaimed public roads by a proclamation signed by the Governor-General on 17 February
1922.718 The proclamation was issued under section 48(2) of the Native Land Amendment
Act 1913, which continued the provision that had been defined in section 117(2) of the
1909 Act. There was no provision for compensation to be paid to the Maori owners of lands
that were proclaimed public roads under the 1913 Act.
All of the land in the roads proclaimed from Retaruke 4B and 4C remains in Crown
ownership. It appears that no formation work has ever been undertaken on Ohuha Road.
9.5 Whanganui River Road (1930) – Various Blocks
This section examines the taking of Maori land for part of the road that runs along the
eastern bank of the Whanganui River between Upokongaro and Pipiriki. A rough track
appears to have been used for many years before the construction of an improved road was
undertaken from around the early 1920s, commencing in the south from Upokongaro.719 By
the late 1920s, the road formation was being extended towards Pipiriki. As work on the
road progressed, the Public Works Department sought to legalise the road-line, transferring
ownership to the Crown using Public Works legislation. Certain parts of the road had been
to about 20 Crown settlers and a number of holders of Maori land. He explained that priority was being given
to the construction of the Owhango end ‘as the Native Lands are on the Retaruke Road end.’
715
Deputy Registrar to Under-Secretary, Lands and Survey, 15 October 1921, LS 1 16/927, ANZ Wellington.
716
Under-Secretary, Lands and Survey, to chief surveyor, 8 November 1921, LS 1 16/927, ANZ Wellington.
717
Surveyor General to County Clerk, 28 November 1921, LS 1 16/927, ANZ Wellington.
718
New Zealand Gazette, 1922, no. 12, p 518.
719
See correspondence in W 1 39/14 part 3, Wanganui River Road, 1924-1929, ANZ Wellington.
260
RAETIHI
"t'-=" I
Pipiriki
'"o
~
c.
0 ,
0
Figure 15: Whanganui River Road
261
, , ,,
,, ,
10km
Smiles
surveyed and taken many years earlier in anticipation that the road would one day be
formed. For example, the section of road that extended north from Hiruharama (Jerusalem)
had been taken under the authority of warrants issued in 1891 and 1892.720 Much of the
land through which the Whanganui River Road passed was in Maori ownership.
The taking that is examined here deals with that part of the road that runs between a point
just south of the Mangatopitopi Stream and Hiruharama. The northern portion of this length
of road had been surveyed in 1915; the southern portion in 1930.721 It appears that the
construction of this part of the road was largely completed before legalisation steps were
undertaken by the Public Works Department. This enabled certain changes to be made to
the course of the road in accordance with the wishes of Maori living at Hiruharama.
On 22 August 1929, the Director of the Maori Hygiene Division of the Health Department
wrote to the Under-Secretary of Public Works, advising that he had received
communication from M Wharekoha and other Huriharama Maori concerning the
construction of the road.722 He explained that the Maori claimed that the Public Works
Department intended to take the road through Huriharama Pa, necessitating the removal of
the meeting house and the subdivision of the Pa area. Stating that there was ‘very great
concern’ amongst local Maori, the Director asked that the matter be investigated as soon as
possible. On 12 September 1929, the Under-Secretary forwarded the Director’s letter to the
District Engineer in Stratford, asking for details on the matter.723
On 19 September 1929, Toa Taiwhati raised the issue of the road through Hiruharama in a
letter written to the Minister of Works.724 Taiwhati questioned whether the Public Works
Department had any right to run the road through the Pa. He stated that the road had been
surveyed ‘to go in front of our houses and straight in the centre of a big Maori house what
720
SO 13261, Wellington Land District, LINZ; New Zealand Gazette, 1894, no. 49, p 993.
SO 16797, Wellington Land District, LINZ; SO 18917, Wellington Land District, LINZ; SO 18918,
Wellington Land District, LINZ.
722
Director of Division of Maori Hygiene to Under-Secretary, Public Works, 22 August 1929, W 1 39/14 part
4, Wanganui River Road, 1929-1934, ANZ Wellington.
723
Under-Secretary, Public Works, to District Engineer, 12 September 1929, W 1 39/14 part 4, ANZ
Wellington.
724
Taiwhati to Ranson, 19 September 1929, W 1 39/14 part 4, ANZ Wellington.
721
262
we call a Whare Puni.’ Taiwhati also claimed that the road would run very close to an
urupa, with a high batter that would be vulnerable to slipping.
In a memorandum written to head office on 3 October 1929, the District Engineer reported
that the road-line had been surveyed some 15 years earlier, but had not yet been
legalised.725 He claimed that the Maori had agreed to the course of the road when it had
been surveyed. The District Engineer explained that the Pa occupied the whole of the
ground above flood level and that it was therefore necessary that the road should pass
through part of its area. He advised that the Maori now wished to move several whare in
order to allow the road to pass along the edge of the terrace, thereby preserving the meeting
house. The District Engineer advised that the necessary alterations to the survey were in
hand. He thought that it was ‘important that steps should be taken to clinch the matter and
legalise the road before further complications arise.’726
On 15 October 1929, the Assistant Under-Secretary wrote to the District Engineer,
enclosing Taiwhati’s letter of 19 September 1929.727 He asked whether the deviation that
the District Engineer had mentioned would address Taiwhati’s objections. Replying on 23
November 1929, the District Engineer stated that he had visited Hiruharama on 24 October
1929 and had spoken with Taiwhati and other concerned Maori.728 He reported that a new
road-line had been fixed through the Pa, which he claimed was ‘satisfactory to all
concerned’. The District Engineer also stated that he had undertaken to shift the whare to
selected sites at the Department’s expense. He anticipated that there would not be ‘any
further trouble.’729
The Public Works’ file that concerns the legalisation of the part of the Whanganui River
Road that is examined here has not been located.730 It is therefore possible to provide only a
brief outline of the taking process. On 3 July 1930, the Minister of Works signed a notice of
725
District Engineer to Permanent Head, 3 October 1929, W 1 39/14 part 4, ANZ Wellington.
Ibid.
727
Assistant Under-Secretary to District Engineer, 15 October 1929, W 1 39/14 part 4, ANZ Wellington.
728
District Engineer to Permanent Head, 23 November 1929, W 1 39/14 part 4, ANZ Wellington.
729
Ibid.
730
The reference for this file is PW 39/14/4.
726
263
intention to take land from several Maori owned blocks for the part of the road that is
described above.731 The notice, given under the provisions of the Public Works Act 1928,
detailed that the following lands were to be taken:
Block
Morikau 1
Ngarakauwhakarara
Ohotu 1
Ranana
Ranana Native Reserve
Tauakira 2M
Total
Area taken
22a 3r 30p
22a 2r 00p
36a 0r 35p
9a 2r 19p
11a 2r 06p
42a 0r 10p
144a 3r 20p
The notice of intention to take detailed that a plan of the required lands was available for
inspection at the Ranana post office, and that objections were to be made in writing to the
Minister of Works within 40 days of first publication of the notice. It is unclear whether
any objections were made to the taking. The lands were taken on 6 October 1930 by a
proclamation that had been signed by the Governor-General on 19 September 1930.732
Compensation was determined by the Native Land Court on 30 June 1932.733 The owners
were not represented in Court. The Public Works’ Department’s representative, a Mr
Carter, asked the Court to order that no compensation was payable. Carter explained that
the lands in question had been used for many years as a road. He also stated that public
funds had been spent upon the road. In accordance with Carter’s request, the Court ordered
that ‘nil’ compensation was payable, presumably because it considered that the owners had
suffered no loss as a result of the taking. However, there appears to have been no legislative
provision enabling the Court to made such an order when assessing compensation under the
Public Works Act 1928.
The land that was taken for part of the Whanganui River Road on 6 October 1930 continues
to be used as a road. It remains in Crown ownership.
731
New Zealand Gazette, 1930, no. 51, p 2175.
New Zealand Gazette, 1930, no. 66, p 2830.
733
Wanganui minute book 94, 30 June 1932, pp 98-99.
732
264
9.6 Conclusion
The four takings examined in this chapter were carried out between 1890 and 1930, the
period when most Maori land was acquired for roading from the Whanganui Inquiry
District. The earliest taking, that from Puketarata block in 1891, appears to have been
carried out without any prior notification. The 1903 taking from Raketapauma block
indicates that, by this time, such an approach may have been viewed as unacceptable. In
this case, notice of intention to take was served upon the owners by post. In December
1911, owners were probably present when the Court laid off road-lines through Retaruke
4B and 4C during a partition hearing for Retaruke 4. It is unclear whether notice of
intention to take was served upon the owners of the land that was taken for the Whanganui
River Road in 1930. However, construction work appears to have been largely completed
by this time, leaving little room for objections. In late 1929, the Public Works Department
showed a willingness to accommodate Maori interests when it altered the course of the road
at Huriharama to minimise its impact upon the village.
Compensation was not paid for any of the four takings examined in this chapter, indicating
that this may have been common where Maori land was required for roading purposes. The
1891 and 1903 takings were carried out under the five percent rule, which suggests that this
rule was widely applied. The legislation under which road-lines were proclaimed through
Retaruke 4B and 4C also did not require compensation to be paid. However, this was not
the case for the land that was taken for the Whanganui River Road under the Public Works
Act 1928. The Court appears to have had no statutory basis upon which to determine that
no compensation was payable for this land.
Two of the takings discussed in this chapter show that land acquired for roading was
sometimes never used for the purpose for which it was taken. It appears that a road was
never formed on the land taken from Puketarata block in l891. This also seems to have been
the case with the land proclaimed from Retaruke 4B and 4C for Ohuha road-line. These
areas remain in Crown ownership as paper roads.
265
Figure 16: Ohakune Scoria Pit (Source: Based on cadastral information from
Terraview, Terralink NZ)
266
Chapter 10: Metal Pits – Ohakune Scoria Pit Taking (1968) and Disposal
(1998)
10.1 Introduction
On 1 July 1968, 4 acres 6 perches was taken for a scoria pit from Part Raetihi 4B at
Ohakune. The taking was carried out by the Ministry of Works under section 32 of the
Public Works Act 1928. The registered proprietor of the taken land was the Maori Trustee,
who held it on behalf of a large number of beneficial owners under Crown derived title.
Metal had been extracted from the site since late 1963, when entry onto the land was
obtained under section 17 of the 1928 Act. A compensation settlement for the 1968 taking
was never finalised because the Maori Trustee and Ministry of Works disputed whether the
value of the metal extracted prior to taking should be included in the assessment. On 12
January 1998, the proclamation by which the scoria pit was taken was revoked by Land
Information New Zealand in accordance with section 54(1) of the Public Works Act
1981.734 The notice was declared ‘void and of no effect as from the date on which it was
made.’ On 29 January 1998, a certificate of title was issued in the name of the Maori
Trustee.735 The land continues to be held by the Maori Trustee today.
10.2 Extraction of Metal prior to Taking
In December 1963, the Ministry of Works took steps to secure entry onto about 51/4 acres
of Part Raetihi 4B for the purpose of obtaining metal for roading work. (This area was
larger than the area that was eventually taken because it included land upon which two
houses were located. The house sites were excluded from the taking.) On 19 December
1963, the District Commissioner of Works advised the Resident Engineer in Wanganui
that, if the metal on this land was required urgently, the only option was to gain entry under
734
735
New Zealand Gazette, 1988, no. 1, p 77.
CT 52D/326, Wellington Land District, LINZ.
267
section 17 of the Public Works Act 1928.736 He instructed the Resident Engineer to serve
the required notice on the occupier and send a copy of this notice to the Department of
Maori Affairs. The registered proprietor of Part Raetihi 4B, which had a total area of 99
acres 10 perches, was the Maori Trustee, who acted on behalf of a large number of
owners.737
As well as providing for land to be taken for the purposes of a gravel pit or quarry, section
17 of the 1928 Act empowered servants or agents of the Minister of Works to enter onto
land to ‘dig and take any stone, gravel, or other material’. Notice was to be given to the
occupier 24 hours before entry and reasonable compensation was to be paid to the owner
for any injury done to the land and any material taken. The District Commissioner
anticipated that there was ‘bound to be argument’ over the royalty payments for the metal
that would be extracted from the Ohakune site.738 He therefore believed that, after gaining
entry, it would be desirable to take the land under the Public Works Act, paying the owners
the market value of the land as compensation. The Resident Engineer was asked to initiate
steps to take the land only if he was sure that it would produce the required amount of metal
or scoria.
The Ministry of Works gained entry onto the proposed metal pit after the Resident Engineer
served notice on the occupier, leaseholder James Lim Yock, on 20 December 1963.739 The
Resident Engineer also sent a copy of this notice to the District Officer of the Department
of Maori Affairs.740 On 17 February 1964, the Maori Affairs’ District Officer wrote to the
Resident Engineer, asking how the Ministry of Works proposed to pay compensation.741
Noting that an agreement would have to be reached on royalties, the District Officer
suggested that a lump sum payment would be appropriate if small amounts of metal were
going to be extracted. As to the matter of injury to the land, the District Officer thought that
this could be dealt with after the quarrying had been completed.
736
District Commissioner of Works to Resident Engineer, 19 December 1963, AATC W3457/220 15/31,
Scoria Pit – Ohakune, 1963-1976, ANZ Wellington.
737
Particulars of title to land – Part Raetihi 4B, AATC W3457/220 15/31, ANZ Wellington.
738
Ibid.
739
Resident Engineer to Lim Yock, 20 December 1963, AATC W3457/220 15/31, ANZ Wellington.
740
Resident Engineer to District Officer, 20 December 1963, AATC W3457/220 15/31, ANZ Wellington.
268
On 20 March 1964, the District Commissioner of Works advised the Maori Affairs’ District
Officer of the intention to take the land under the Public Works Act. 742 He stated that a
valuation would be made, and that compensation would be negotiated with the Maori
Trustee after the land had been taken. The District Commissioner claimed that there was
‘no question of the Crown paying royalties for metal extracted.’ He requested title details
for the land, as well as details relating to the lease to Lim Yock. Replying on 30 June 1964,
the Assistant District Officer of the Maori Affairs Department questioned why the Ministry
of Works proposed to take the land under the Public Works Act.743 He pointed out that the
Maori Trustee had agreed to metal being extracted from the land by the notice given under
section 17 of the 1928 Act. The Assistant District Officer also noted that, in accordance
with section 17, compensation should be paid for any metal extracted or any injury to the
land.
The District Commissioner of Works wrote again to the Maori Affairs’ District Officer on
31 July 1964.744 He explained that steps had been taken to secure entry onto the land under
section 17 only because the acquisition of the metal had been considered urgent. As to the
payment of royalties, he claimed that:
It is a well established principle which has been upheld by the Courts on many occasions that
unless there is an established market for the material (other than to the Crown or Local
Authorities) a claim for royalty cannot succeed. In this case there is no such market and I am
therefore not prepared to consider payment of royalty for the material taken.745
The District Commissioner stated that in such cases it was preferable for the land to be
taken and for compensation to be negotiated in accordance with the Public Works Act
1928. However, he advised that the Ministry of Works would continue to extract the metal
under section 17 if the Maori Trustee had serious objection to the land being taken. In a
741
District Officer to Resident Engineer, 17 February 1964, AATC W3457/220 15/31, ANZ Wellington.
District commissioner of Works to District Officer, 20 March 1964, AATC W3457/220 15/31, ANZ
Wellington.
743
Assistant District Officer to District Commissioner of Works, 30 June 1964, AATC W3457/220 15/31,
ANZ Wellington.
744
District Commissioner of Works to District Officer, 31 July 1964, AATC W3457/220 15/31, ANZ
Wellington.
742
269
letter written on 4 November 1964, the Maori Trustee advised that no objection would be
made to the land being taken under the Public Works Act 1928.746
In spite of the approval given by the Maori Trustee, the taking did not proceed at this time
because there was doubt as to whether the scoria was of a sufficient quality to warrant such
action. Extraction continued under the right of entry secured under section 17. On 26 July
1965, the Maori Trustee wrote to the District Commissioner, suggesting that royalties
should be paid because it had become evident that there was an alternative market for metal
other than to the Crown and local authorities.747 It was explained that Lim Yock had been
granted a license to extract metal from neighbouring land, which would be sold to local
farmers. The District Commissioner rejected the Maori Trustees’ claim for royalties,
arguing that at the time that the Crown entered onto the land there had been no demand for
metal and no established pit or quarry.748
On 5 October 1965, the District Officer of the Department of Maori Affairs enquired
whether the land was to be taken or simply worked under the section 17 right of entry.749 In
reply, the District Commissioner advised that the extracted material had not been entirely
successful for roadmaking and that alternative supplies were being sought.750 He stated that
the scoria pit was likely to be abandoned if a more suitable material was located. It was not
until August 1966 that a decision was finally made with regard to the future use of the
scoria pit. Writing on 23 August 1966, the Resident Engineer advised the District
Commissioner that steps to take the land should proceed.751 He stated that though the metal
745
Ibid.
Maori Trustee to District Commissioner of Works, 4 November 1964, AATC W3457/220 15/31, ANZ
Wellington.
747
Maori Trustee to District Commissioner of Works, 26 July 1965, AATC W3457/220 15/31, ANZ
Wellington.
748
District Commissioner of Works to Maori Trustee, 3 August 1965, AATC W3457/220 15/31, ANZ
Wellington.
749
District Officer to District Commissioner of Works, 5 October 1965, AATC W3457/220 15/31, ANZ
Wellington.
750
District Commissioner of Works to District Officer, 8 October 1965, AATC W3457/220 15/31, ANZ
Wellington.
751
Resident Engineer to District Commissioner of Works, 23 August 1966, AATC W3457/220 15/31, ANZ
Wellington.
746
270
had been found to be unsuitable as a basecourse for roading, it was nevertheless a
satisfactory fill material.
10.3 The Taking
Writing on 19 October 1966, the District Commissioner advised the Maori Affairs’ District
Officer that it was likely that the scoria pit would be taken.752 He also noted that the area
proposed for taking would be reduced in order to exclude two house sites. On 4 April 1967,
the chief surveyor was asked to provide an amended plan of the land.753 The resulting plan
showed that the area required for the scoria pit had been reduced to 4 acres 6 perches.754
This plan is presented in Figure 19. On 4 October 1967, the District Commissioner wrote to
the Maori Trustee, informing him that the taking proclamation was being withheld to
enable compensation negotiations with the lessee to be finalised.755 A settlement with Lim
Yock was finally concluded in April 1968.756 The lessee was paid $340 for his interest in
fencing improvements and for four years of overpaid rates and rent.757
Following the settlement with Lim Yock, a declaration was prepared for the land to be
taken pursuant to section 32 of the Public Works Act 1928. Section 32 enabled land to be
acquired by agreement without the usual notification procedures. It required that
compensation be determined either by agreement or by the procedures set out in Part III of
the 1928 Act that applied to non-Maori land. On 2 May 1968, the District Commissioner of
Works wrote to the Commissioner of Works, recommending that the Minister sign the
declaration for the taking of the scoria pit.758 It was explained that the Maori Trustee had
752
District Commissioner of Works to District Officer, 19 October 1966, AATC W 3457/220 15/31, ANZ
Wellington.
753
Resident Engineer to chief surveyor, 4 April 1967, AATC W3457/220 15/31, ANZ Wellington.
754
SO 26888, Wellington Land District, LINZ.
755
District Commissioner of Works to Maori Trustee, 4 October 1967, AATC W3457/220 15/31, ANZ
Wellington.
756
Memorandum of agreement between Lim Yock and the Ministry of Works, AATC W3457/220 15/31,
ANZ Wellington.
757
Land purchase officer to District Commissioner of Works, 19 March 1968, AATC W3457/220 15/31,
ANZ Wellington.
758
District Commissioner of Works to Commissioner of Works, 2 May 1968, AATC W3457/220 15/31, ANZ
Wellington.
271
agreed to the taking and to compensation being assessed under the provisions of the 1928
Act. The District Commissioner stated that the declaration had been prepared at the
instance of the National Roads Board, the scoria pit being required permanently for metal
supply purposes in the Ohakune area. The Minister of Works signed the declaration on 29
May 1968. The land passed into Crown ownership on 1 July 1968.759 A copy of the New
Zealand Gazette notice was sent to the Maori Trustee, who was asked to provide a claim
for compensation.760 The Maori Trustee requested a plan of the taken land to enable a
valuation to be made.761
10.4 Compensation
Efforts to reach a compensation settlement were drawn out over a number of years. On 21
August 1970, the District Commissioner wrote to the District Officer of the Maori Affairs
Department, offering $325 in full settlement of the taking.762 This sum represented the
market value of the land in 1964, when the Ministry of Works first entered upon it, less rent
received from the lessee. This offer was rejected by the Maori Trustee, who served a claim
upon the Ministry of Works for $6000.763 This claim, dated 23 March 1971, appears to
have been for the value of the land at the time of taking, and for royalties on the metal
extracted up until this time. In response, the Commissioner of Works informed the Maori
Trustee that this claim was ‘not admitted’.764
On 28 June 1971, the Ministry of Works submitted a new offer of $300 to the Maori
Trustee.765 This offer was again based on the value of the land at the time of entry,
excluding improvements made by the lessee. The senior land purchase officer believed that
the Maori Trustee could not justify a claim from the date of taking, and had done so only to
759
New Zealand Gazette, 1968, no. 41, p 1088.
District Commissioner of Works to Maori Trustee, 10 July 1968, AATC W3457/220 15/31, ANZ
Wellington.
761
Maori Trustee to District Commissioner of Works, 16 July 1968, AATC W3457/220 15/31, ANZ
Wellington.
762
District Commissioner of Works to District Officer, 21 April 1970, AATC W3457/220 15/31, ANZ
Wellington.
763
Claim for compensation, 23 March 1971, AATC W3457/220 15/31, ANZ Wellington.
764
Commissioner of Works to Maori Trustee, 6 April 1971, AATC W3457/220 15/31, ANZ Wellington.
760
272
enable the value of the metal to be included in the claim.766 Lim Yock’s metal pit was
operating by the time of the taking, which meant that the Maori Trustee could argue that
there was an established market for the metal.
With a negotiated outcome appearing unlikely, the Maori Trustee proceeded to initiate
proceedings for the compensation claim to be settled in the Land Valuation Court. On 7
July 1971, the Trustee gave notice requesting that the claim for compensation be heard
under Part III of the 1928 Act.767 Upon receiving a copy of the Maori Trustee’s request for
a hearing, the Commissioner of Works wrote to the Solicitor General, asking that the
Crown Solicitor defend the Ministry of Works’ claim.768 For reasons that are unclear, the
Maori Trustee’s compensation claim does not appear to have been considered by the Land
Valuation Court.
In 1979, the Court of Appeal dealt with the payment of compensation under section 17 of
the 1928 Act in Minister of Works and Development v Hura.769 This case addressed similar
issues to those that had surfaced during efforts to reach a settlement in relation to Ohakune
scoria pit. The case related to a metal pit within Rangipo North 6C, also within the
Whanganui Inquiry District, which the Ministry of Works had extracted material from for
many years for roading and power development purposes. The land remained in Maori
ownership, having never been formally taken. Crown counsel accepted that compensation
was payable, but submitted that the amount could not exceed the value of the land because
the Crown could have taken it at any time. In its judgement, the Court of Appeal
determined that section 17 required the Crown to pay compensation ‘for the metal taken’,
with no limit – in reference to land value or any other factor – on the sum payable. It was
stressed that compensation was to be paid ‘on the basis of what the Crown did, not on what
with hindsight it could be said that it might have done to its financial advantage’.770
765
Liebergreen to Maori Trustee, 28 June 1971, AATC W3457/220 15/31, ANZ Wellington.
Senior land purchase officer to District Commissioner of Works, 22 June 1971, AATC W3457/220 15/31,
ANZ Wellington.
767
Notice requiring claim to be heard in Court, 7 July 1971, AATC W3457/220 15/31, ANZ Wellington.
768
Commissioner of Works to Solicitor General, 13 July 1971, AATC W3457/220 15/31, ANZ Wellington.
769
Minister of Works and Development v Hura [1979] 2 NZLR 279.
766
273
In August 1985, the executive officer of the Ministry of Works’ property management
group identified that there was a ‘dead’ claim relating to the payment of compensation for
Ohakune scoria pit.771 It was apparent that a compensation settlement had never been
reached in the early 1970s. On 13 August 1985, the Commissioner of Works wrote to the
District Commissioner, asking him to make enquiries of the Crown Solicitor as to where
the matter lay.772 Replying on 19 August 1985, the District Commissioner reported that
active negotiations had recently been held with the claimants’ solicitors, which he hoped
would soon lead to a recommendation supported by the Crown Solicitor.773 There is no
available evidence relating to these negotiations because the Works’ district office file for
this period cannot be located. However, it is clear that that the compensation settlement for
Ohakune scoria pit was not concluded.
Further efforts to settle the claim were made by the owners’ solicitors in April 1987.774 It
was proposed that the land be returned to the owners under section 436 of the Maori Affairs
Act 1953, which suggests that by this time metal was no longer being extracted from the
site. It was also proposed that the Crown pay royalties of $1500 for the metal taken, and
that an additional payment of $1281 be made for legal costs incurred during the period
1971 to 1987. The Ministry of Works appears to have looked upon this proposal
favourably, but in the face of restructuring, took no action.775 When the requirements of the
Ministry, and later Workscorp, were reassessed, the scoria pit was included with lands that
were deemed not to be ‘core assets’. The administration and disposal of such lands then
became the responsibility of the Department of Survey and Land Information (DOSLI).
10.5 Revocation of Taking
770
Ibid.
Executive officer, property management group, to Grant, 2 August 1985, AAZZ W4923 62/86/8/20,
Gravel Pits – Scoria Pit, Ohakune, ANZ Wellington.
772
Commissioner of Works to District Commissioner of Works, 13 August 1985, AAZZ W4923 62/86/8/20,
ANZ Wellington.
773
District Commissioner of Works to Commissioner of Works, 19 August 1985, AAZZ W4923 62/86/8/20,
ANZ Wellington.
774
District Solicitor, section 40 investigation, 11 July 1991, 5400-03-07, Scoria Pit – Ohakune (Wanganui
office file), LINZ.
771
274
In a report written on 11 July 1991, DOSLI’s Wanganui District Solicitor recommended
that Ohakune scoria pit be offered back in terms of section 40 of the Public Works Act
1981, with the terms of return to be settled with the owners’ solicitors.776 He outlined the
Maori Trustee’s failed attempts to claim compensation, stating that the Crown had been
unprepared to pay compensation to owners on the basis of a royalty for material taken. The
District Solicitor noted that this practice had been questioned in 1979 by the Court of
Appeal in Minister of Works and Development v Hura. In recommending offer back, he
explained that the land had been ‘acquired with a background of compulsion and . . . is not
now required for the public works for which it was taken.’ The District Solicitor noted that
he was not aware of the land being required for any other public purpose, or for an
exchange.
Writing to the District Manager on 11 July 1991, the District Solicitor pointed out that there
were two options as to how the land might be returned to Maori ownership: a vesting order
under section 436 of the Maori Affairs Act 1953, or alternatively, a revocation of the taking
under section 54 of the Public Works Act 1981. 777 The District Solicitor believed that the
first method would involve delays, and that the owners’ representative would claim
compensation as a condition of the section 436 order. He also anticipated that there would
be a claim for compensation if the land was returned under section 54, which provided for
proclamations to be partly or wholly revoked in cases where compensation had not been
settled. The District Solicitor noted that it seemed likely ‘that the return of the land will
involve a financial commitment by the Crown rather than the more usual situation of
payment being made to the Crown.’ The District Manager approved the offer back of the
scoria pit, suggesting that it be returned without cost to the owners and that compensation
be paid.778 This approval was given subject to a report being prepared for the
Commissioner of Crown Lands.
775
Ibid.
Ibid.
777
District Solicitor to District Manager, 11 July 1991, 5400-03-07, LINZ.
778
Grey, note, 17 September 1991, on District Solicitor to District Manager, 11 July 1991, 5400-03-07, LINZ.
776
275
On 23 December 1991, the District Solicitor wrote to the Commissioner of Crown Lands,
requesting approval of funding for the compensation settlement that would accompany the
section 40 offer back.779 He provided background information and details of a settlement
based on the 1987 proposal. Before receiving a reply to this letter, the District Solicitor
wrote again to the Commissioner of Crown Lands on 28 February 1992, asking if a
revocation of the taking under section 54 of the 1981 Act was an appropriate method of
returning the land.780 The District Solicitor believed this to be the most convenient option,
noting that compensation had never been paid for the land. He pointed out that subsection
54(4) gave the owners the right to recover compensation, a matter that the proposed
settlement intended to address. Replying on 3 March 1992, Russell Davies, a staff member
writing on behalf of the Commissioner of Crown Lands, stated that he did not believe that
section 54 could be employed to return the land to the owners:
section 54 is intended to be used if it is found, before any compensation is paid, that the land is
not required for a public work. It does not use the words ‘no longer required’ as in section 40,
and does not seem to contemplate the situation where a metal pit has been taken – unless the
removal of scoria never began.781
In spite of repeated requests by the District Solicitor, it was not until mid-1995 that funding
for the settlement was finally approved.782 During this time, the owners’ solicitors
requested that steps be taken to ‘get the matter back on the rails’.783 On 11 November 1993,
the secretary of Atihau Whanganui Incorporation had written to DOSLI’s Wanganui
property manager, asking whether the scoria pit might be vested in the Incorporation, which
owned an adjacent metal pit.784 It was pointed out that the previous owners would be
shareholders in the Incorporation, which owned the balance of Raetihi 4B. In reply, the
District Solicitor advised that the return of the land had been approved, but that settlement
779
District Solicitor to Commissioner of Crown Lands, 23 December 1991, 5400-03-07, LINZ.
District Solicitor to Commissioner of Crown Lands, 28 February 1991, 5400-03-07, LINZ.
781
Davies to District Solicitor, 3 March 1992, 5400-03-07, LINZ.
782
District Solicitor to District Manager, 10 April 1992, 5400-03-07; District Solicitor to District Manager, 20
August 1992, 5400-03-07, LINZ; District Solicitor to District Manager, 21 April 1993, 5400-03-07, LINZ;
District Solicitor to District Manager, 9 June 1993, 5400-03-07, LINZ.
783
Tripe, Matthews, and Feist, to District Solicitor, 3 June 1993, 5400-03-07, LINZ.
784
Robson and Partners to property manager, 11 November 1993, 5400-03-07, LINZ.
780
276
funds had not been secured.785 He indicated that the matter of vesting would have to be
discussed with the Maori Trustee, the registered owner prior to taking. Writing on 14
February 1994, the Regional Trust Manager of the Office of the Maori Trustee advised the
District Solicitor that it was ‘logical that the shares should be vested in the shareholders of
the incorporation.’786 He noted that the last record showed 180 owners, whose individual
shares were ‘very small’.
It is unclear why approval of funding for the compensation settlement was not given until
about three and a half years after it had first been requested. On 1 May 1995, the District
Solicitor wrote to the Regional Manager, requesting a resolution to the ‘very long-standing
problem.’787 A request was then made to the Commissioner of Crown Lands, who was
informed that earlier attempts to secure funding from head office had ‘fallen on deaf
ears’.788 The District Solicitor provided details of the monies required for settlement, and
on 19 May 1995 was finally advised to proceed with negotiations.789 In a letter written on
22 May 1995, the District Solicitor put forward a settlement offer to the owners’
solicitors.790 The offer was the same as that that had been negotiated in 1987, though it
included a provision for interest to be paid for the intervening period. It was explained that
the secretary of Atihau Whanganui Incorporation had suggested that the land be vested in
the Incorporation, and that this had been supported by the Maori Trustee. The owners’
solicitors were amenable to the proposed settlement, but sought legal costs through to
1995.791 They thought that it would be reasonable to have the land vested in the
Incorporation, but were unsure whether this would be acceptable to the Court. Replying on
2 June 1995, the District Solicitor acknowledged that additional funds should be provided
for legal costs, and also discussed how the land might be vested. With regard to the land
being returned to Atihau Whanganui Incorporation, he suggested that this would not be
inconsistent with the requirements of section 40. Noting that the land had to be offered back
785
District Solicitor to Robson and Partners, 17 November 1993, 5400-03-07, LINZ.
Regional Trust Manager to District Solicitor, 14 February 1994, 5400-03-07, LINZ.
787
District Solicitor to Regional Manager, 1 May 1995, 5400-03-07, LINZ; District Solicitor to Regional
Manager, 1 May 1995, 5400-03-07, LINZ.
788
Manager, Lands and Property, to Commissioner of Crown Lands, 12 May 1995, 5400-03-07, LINZ.
789
Bonisch to Phillips, 19 May 1995, 5400-03-07; Phillips to Bonisch, 19 May 1995, 5400-03-07, LINZ.
790
Bonisch to Tripe, Matthews, and Feist, 22 May 1995, 5400-03-07, LINZ.
791
Tripe, Matthews, and Feist to Bonisch, 31 May 1995, 5400-03-07, LINZ.
786
277
to the former owners or their successors, the District Solicitor believed that this could
include ‘successors in title’.
The return of the land was stalled when the District Solicitor received a memorandum from
the Maori Trustee’s Regional Solicitor, who expressed doubt that the Maori Land Court
would be prepared to make either a vesting order or a compensation order in favour of the
Incorporation.792 Noting that the Incorporation now owned Raetihi 4B, the Regional
Solicitor acknowledged that there would be a ‘commonality of ownership’ between the
former owners of the scoria pit and the Incorporation. However, it was pointed out that if
vesting and compensation orders were made in favour of the Incorporation, all of the
Incorporation’s shareholders would benefit. The Regional Solicitor stated that this would
deny some of the former owners of Raetihi 4B significant compensation monies, but
acknowledged that the option of returning the land and paying compensation to all former
owners would pose significant practical difficulties:
The total shareholding in Raetihi 4B is 40. The largest shareholder owned 3.3161 shares. His
share of the $2850 amounts to $236. A current member of the Maori Land Court staff at
Wanganui owns 1.4446 shares. Her entitlement is $103. They should be entitled to receive
payment. The difficulty is in respect of the other (by now) several hundred claimants to the
money. There were 184 owners in Raetihi 4B. Only 12 owned one or more shares. As at 1986,
9 of these 12 were deceased and having regard to succession to other blocks we know that
these 9 left 55 successors. The remaining 172 shareholders that owned less than one share will
have had an equivalent number of successors. There could therefore be approximately 1000
persons entitled to share in the compensation money – if all successors to the owners of the
land at the date of taking are treated as being entitled to share in the compensation. If the Maori
Land Court should not approve the payment of the compensation to the incorporation (and one
wonders why it should so approve) the Maori Land Court and the Maori Trustee are going to
have to embark on a lengthy exercise to identify the 1000 persons entitled and to distribute the
compensation to them.793
The Regional Solicitor considered alternative strategies, such as distributing monies only to
people entitled to $25 or more. However, these methods were also considered to be
792
Regional Solicitor to McIntyre, 23 June 1995, 5400-03-07, LINZ.
278
complex solutions. The Regional Solicitor therefore thought that the matter of identification
and distribution had to be addressed. He suggested that DOSLI should meet the
considerable costs associated with this process, estimating that these might be as large as
the compensation award itself.
On 15 September 1995, the Commissioner of Crown Lands wrote to DOSLI’s District
Manager at Wanganui, asking what progress had been made with the disposal of the scoria
pit.794 Explaining that the matter was ‘a little complicated’, the District Solicitor forwarded
recent correspondence on the matter, including the memorandum from the Regional
Solicitor of the Office of the Maori Trustee.795 Replying on 28 September 1995, the
Commissioner commented that the situation looked like ‘the start of a nightmare’.796 He
expressed concern that the Crown might be exposed to a Treaty claim alleging breach of
offer back if the land and compensation were not vested in the rightful owners. He did not
believe that the land and compensation should be vested in the Incorporation without the
owners’ consent. The Commissioner considered that there were two courses of action that
would enable the matter to be resolved: first, the Maori Trustee could be asked to accept the
offer back and compensation with a view to revesting in the rightful owners; secondly,
arrangements could be made for the appointment of trustees, who would receive the land
and compensation. Noting that the first option was ‘least demanding’, the Commissioner
stated that he would be prepared to pay the Maori Trustee $1500 over and above the sum of
compensation, thereby enabling the Maori Trustee to identify all of the entitled owners. The
District Solicitor was asked to investigate whether the owners could be identified and the
cost that this might involve.
There is no evidence that any further steps towards returning the land were taken at this
time. On 30 December 1996, upon the closure of the Wanganui office, the District Solicitor
forwarded the Wanganui office file to the Regional Solicitor, noting that the case was ‘a
793
Ibid.
Commissioner of Crown Lands to District Manager, 15 September 1995, 5400-03-07, LINZ.
795
Bonisch to Commissioner of Crown Lands, 20 September 1995, 5400-03-07, LINZ.
796
Commissioner of Crown Lands to Bonisch, 28 September 1995, 5400-03-07, LINZ.
794
279
nightmare’ that he had been unable to complete.797 The District Solicitor believed that an
application for re-vesting of the land should be made to the Maori Land Court in terms of
section 134 of Te Ture Whenua Maori Act 1993. He believed that, if this was done, the
Court might vest the land in the Incorporation rather than the owners. However, he noted
that there was some disagreement with the Maori Trustee because of the possibility of
unfairness if the land and the compensation were handed to the Incorporation.
In mid-1997, the Regional Solicitor of DOSLI’s successor, Land Information New Zealand,
wrote to the Commissioner of Crown Lands, once more raising the issue of the unresolved
disposal.798 He identified that it had earlier been suggested by the District Solicitor that the
proclamation could be revoked under section 54 of the 1981 Act. The Regional Solicitor
incorrectly stated that the legal opinion that had been offered at this time had supported the
use of section 54. He identified that revocation of the proclamation would circumvent many
of the difficulties posed by offer back under section 40:
The effect would be that there would be no need to trace the former owners at the cost of the
Crown. All that would remain would be to pay royalties which were unpaid to the Maori
Trustee and leave the Trustee to decide who the money should be repaid to.799
The Regional Solicitor asked the Commissioner whether he should proceed to negotiate a
solution with the Maori Trustee upon these grounds. In response, the Commissioner
advised that he had accordingly made a recommendation for such negotiations to be
undertaken with the Maori Trustee.800
On 5 June 1997, a staff member of LINZ’s Crown Property Services wrote an internal
memorandum to Russell Davies, a solicitor in LINZ’s Legal Services, asking whether it
would be appropriate to revoke the proclamation under section 54 of the 1981 Act.801
Davies was the same individual who, in 1992, had advised the District Solicitor that section
797
Bonisch to Regional Solicitor, 30 December 1996, 5400-03-07, LINZ.
Regional Solicitor to Commissioner of Crown Lands, undated, 5400-03-07, LINZ.
799
Ibid.
800
Commissioner of Crown Lands to Regional Solicitor, 15 May 1997, 5400-03-07, LINZ.
801
Healy, Crown Property Services to Davies, Legal Services, 5 June 1997, 5400-03-07, LINZ.
798
280
54 was inapplicable to the Ohakune scoria pit case. Revisiting the issue some five years
later, he expressed a different view, claiming that the use of section 54 would in fact be
appropriate.802 Explaining his earlier position, Davies stated that it had been:
essentially an opinion based on the way section 54 (and the previous section 27 of the Public
Works Act 1928) were perceived in the time of the Ministry of Works and Development. At
that time, a distinction would be made between land found not [to] be needed for the public
work for which it was held (a section 54 situation) and land no longer need for the work for
which it was held (a section 40-42 situation). The understanding was that section 54 was
intended to provide a means for revoking proclamations ‘early in the piece’ if land was found
not to be needed for the work for which it was taken, before anybody had constructed the
public work or had put the land to the intended use.803
Davies proceeded to outline why he had come to believe that section 54 was applicable:
Examination of the actual text of section 54 shows that the powers given by it are not restricted
by time. Subsection (6) makes it clear that the section can be used in respect of any
Proclamation issued before the Public Works Act 1981 came into effect . . . . The important
point to be considered is whether compensation has been paid, not the length of time which has
elapsed or whether the Crown has used the land. (If any authority was required for that
statement, it would be found in Green and McCahill Contractors Ltd v Minister of Lands
[1974] 1 NZLR 251.)
The effect of this section is that the Governor-General or the Minister of Lands has a means of
returning land to its previous owner – either the whole of the land in the Proclamation or part
of it – by a revocation which renders the original document ineffective.
Because the original taking was effected by Proclamation the revocation would need to be dealt
with in the same fashion. Aspects of the relevant law were considered by the Court of Appeal
in Slipper Island Resort v Minister of Works and Development [1981] 1 NZLR 136. The Court
concluded that a decision whether or not to revoke [under the equivalent section in the 1928
Act] was a discretion, as opposed to a statutory power . . . .
802
803
Davies, manager of Legal Services, to Healy, Crown Property Services, 5400-03-07, LINZ.
Ibid.
281
The important question in the present case is whether section 54 of section 40 is to be applied.
Section 40 says that when land is no longer required for a public work the Minister of Lands
shall endeavour to sell it to the person from whom it was acquired, whereas section 54 says
that the Governor-General may revoke the Proclamation where this is appropriate in terms of
that section. Bearing in mind this distinction and the ruling in the Slipper Island case that the
revocation is a matter of discretion rather than the exercise of a statutory power, does this mean
therefore that section 40 must take priority? Section 40 is not expressed as being subject to
section 54.
I am of the opinion that this difference in wording does not give section 40 priority. Rather, as
section 54 was passed at the same time as section 40, and was enacted to deal with a special set
of circumstances, the intention is for it to apply where appropriate to the exclusion of section
40.
Those special circumstances exist in the present case. The land was taken without
compensation being paid, and the owners are entitled to have it back. It is not appropriate to
charge current market value, or even a lesser sum; it is appropriate to return the land and to
compensate the former owners for the Crown’s use and occupation of it, as well as for the
removal of scoria.
Section 40 does not provide for such compensation to be paid, whereas section 54(4) does so.
In some cases the compensation payable may exceed the value of the land itself . . . . Further,
the effect of a section 54 Proclamation would be to make the original Proclamation of no
effect. Because of this nothing in section 40 could have any application as the effect would be
as if the land had never been held for a public work.804
On 10 November 1997, the Regional Manager was forwarded a copy of Davies’ opinion
and was advised that the way was clear to proceed with the revocation of the proclamation
under section 54.805 On 11 November 1997, the Regional Manager advised the secretary of
Atihau Whanganui Incorporation of the decision to revoke the proclamation, thereby
restoring the land to its original owners.806
804
Ibid.
Healy, Crown Property Services, to Regional Solicitor, 10 November 1997, 5400-03-07, LINZ.
806
Regional Solicitor to Robson and Partners, 11 November 1997, 5400-03-07, LINZ.
805
282
On 12 January 1998, a warranted officer of LINZ’s Crown Property Services signed a
notice that revoked the 1968 taking in accordance with section 54(1) of the Public Works
Act 1981.807 The proclamation was declared ‘void and of no effect as from the date on
which it was made.’ A certificate of title for the former scoria pit was issued in the name of
the Maori Trustee on 29 January 1998.808 On 10 March 1998, the Regional Solicitor wrote
to the Maori Trustee, advising that the proclamation had been revoked under and that the
land had therefore revested in the Trustee.809 He stated that the last compensation offer had
comprised $1500 for metal taken, and legal costs (with interest) for the period 1971 to
1987. The Regional Solicitor asked whether the Trustee would approve this settlement.
Replying on 31 March 1998, the Regional Trust Manager stated that the offer was
acceptable to the Trustee.810 On 29 May 1998, the Maori Trustee was sent a cheque for
$1500, which was stated to be ‘full and final settlement of this claim and all claims that the
Maori Trustee may have in the future, against the Crown in respect of any matters arising
relating to the removal of metal from Part Raetihi 4B, CT 52D/326.’811 The owners’
solicitors were paid legal costs of $3425, which included a sum for expenses incurred since
1987.812
10.6 Conclusion
The Ohakune scoria pit case study indicates that the Ministry of Works, when securing
metal for roading and other works, attempted to minimise costs by applying and
interpreting public works legislation to its own advantage. It is unclear whether the
Ministry took this approach only in cases where the affected land was held by Maori. In the
case of Ohakune scoria pit, the Ministry of Works was unwilling to pay compensation for
metal taken after it had gained entry under section 17 of the 1928 Act. It claimed that there
was an established principle whereby compensation was paid only if there was an existing
local market for the extracted material. When such a market emerged in 1965, the Ministry
807
New Zealand Gazette, 1998, no. 1, p 77.
CT 52D/326, Wellington Land District, LINZ.
809
Regional Solicitor to Maori Trustee, 10 March 1998, 5400-03-07, LINZ.
810
Regional Trust Manager to Regional Solicitor, 31 March 1998, 5400-03-07, LINZ.
811
Healy, Crown Property Services, to Maori Trustee, 29 May 1998, 5400-03-07, LINZ.
808
283
of Works bent its initial justification for not paying compensation, claiming that the market
had to have been present when entry was first gained. A compensation settlement was not
reached after Ohakune scoria pit was taken in 1968 because the Ministry of Works refused
to accept the Maori Trustee’s claim for the metal extracted prior to taking. In 1979 the
Court of Appeal rejected the Ministry of Works’ application of section 17 in The Ministry
of Works and Development v Hura.
The disposal of Ohakune scoria pit, which by the late 1980s was no longer required for
works purposes, was drawn out over more than 10 years. In January 1998, the 1968 taking
was revoked under section 54 of the 1981 Act, and in May 1998 a $1500 payment was
made to the Maori Trustee as compensation for the metal extracted prior to taking. The
delay in finalising the disposal of the scoria pit partly reflects that the responsible agencies
– DOSLI, and later its successor, LINZ – do not appear to have held it to be a matter of any
urgency. However, the drawn out nature of the disposal was primarily a result of the
difficulty of meeting the offer back requirements in cases where land had been held in
multiple ownership. As an alternative to the process of sale defined in section 40 of the
1981 Act, land could be returned by a vesting order made under section 436 of the Maori
Affairs Act 1953, and later, section 134 of Te Ture Whenua Maori Act 1993.
These vesting provisions were, however, perceived by the disposing agencies to be
insufficient to overcome the problem of having to return the land to all of the former
owners and successors, who were thought to be about 1000 in number. It was suggested
that the scoria pit could be vested in Atihau Whanganui Incorporation, in which the former
owners were shareholders, but this was rejected because it would override the statutory
right of the former owners to have their individual entitlements recognised. In the end, the
taking was revoked under section 54 of the 1981 Act, a provision that enabled revocation in
cases where compensation had not been paid. This provision, intended for situations where
land had been taken and then found not to be required, had earlier been dismissed as
inapplicable to the disposal of the scoria pit. As a result of the revocation of taking, the
scoria pit returned to the ownership of the Maori Trustee, who had been the registered
812
Healy, Crown Property Services, to Tripe, Matthews, and Feist, 2 June 1998, 5400-03-07, LINZ.
284
owner at the time of taking. This appears to have been a somewhat unsatisfactory
conclusion to the disposal, as it did not return the land to active Maori ownership and
simply passed on to the Maori Trustee the difficulty of identifying the owners and
distributing the compensation money.
285
o
o
.
'00
PI Sec 1 Blk XV
Makoluku S.D.
Ohuta Gravel Pit
Surfaceman's
Hut Site
Figure 17: Ohuta Gravel Pit (Source: based on cadastral information from
Terraview, Terralink NZ)
286
Chapter 11: Metal Pits – Ohotu Gravel Pit Taking (1931) and Disposal
(1994)
11.1 Introduction
On 2 February 1931, 3 acres 2 roods 29 perches was taken for a gravel pit from Lot 1 of DP
9286, within Section 1 of Block XV, Makotuku Survey District. This land, part of Ohotu
1C2, was owned by Maori under Crown derived title. The taking was carried out by the
Public Works Department on behalf of the Waimarino County Council under the Public
Works Act 1928. Notification of the intention to take the land had been given on 27 June
1930. On 2 July 1931, the Native Land Court ordered that £43 be paid to the owners as
compensation for the taken area.
Soon after the taking, the State Highways Board occupied 2 roods of the taken land as a site
for a surfaceman’s cottage. It was not until 1961, when the surfaceman’s cottage was no
longer required, that steps were taken to formally transfer the land into Crown ownership.
On 22 December 1961, the 2 rood area was taken by the Crown under the 1928 Act, the
taking being carried out by the Ministry of Works. The land was then transferred to the
Department of Lands and Survey for disposal. It was sold to the Wanganui Pest Destruction
Board on 16 July 1962. Today, the site of the surfaceman’s cottage is held in private
ownership. It is now known as Section 18 of Block XV, Makotuku Survey District.
Except for 5.6 perches taken for a road, the remaining area of the gravel pit, 3 acres 23.4
perches, continued to be held by the Waimarino County Council. In 1989, this land was
brought under the control of the Waimarino District Council, and later, the Ruapehu
District Council. In April 1992, the Ruapehu District Council resolved to dispose of the
gravel pit, deeming it to be surplus to operational requirements. The Council disposed of
the land in accordance with the offer back provisions of Section 40 of the Public Works Act
1981. On 8 August 1994, the land was transferred to a descendant of one of the original
owners, Murray Hawira, in consideration of $1500. In 1996, it was set apart as a Maori
reservation for the purpose of a marae.
287
11.2 The Taking of Ohotu Gravel Pit
The Public Works Department file for the 1931 taking appears to have been either lost or
destroyed.813 It is therefore only possible to provide a basic outline of the taking.
On 27 June 1930, the Chairman of the Waimarino County Council gave notice of the
County’s intention to acquire 3 acres 2 roods 29 perches from Lot 1 of DP 9286 for a
‘metal and gravel reserve’.814 The notice detailed that a plan of the land was available for
inspection at the Council’s office in Raetihi and that objections to the taking were to be
made in writing to the Chairman within 40 days of when the notice was first published.
Without relevant file evidence, it is unclear whether any objections were made to the
proposed taking. On 2 February 1931, the land was taken under the Public Works Act 1928
by a proclamation that had been signed by the Governor-General on 13 December 1930.815
Compensation was assessed by the Court on 2 July 1931.816 The owners were not
represented in Court. However, the minutes of the Court record that the compensation
award was determined by agreement with the Aotea District Maori Land Board. The Court
awarded the Maori owners compensation of £43, which compared favourably to a
government valuation of £35. An individual who held a lease over the land, J R McLean,
was awarded compensation of £11.
11.3 Taking and Disposal of Surfaceman’s Cottage Site
In 1936, the State Highways Board occupied half an acre of the area taken for the gravel
pit. The Board used this land as a site for a site for a surfaceman’s cottage.817 File evidence
shows that the Public Works Department intended to take this land under the Public Works
813
The proclamation notice published in the New Zealand Gazette provides a reference to Public Works
Department file 54/568.
814
New Zealand Gazette, 1930, no. 51, p 2186.
815
New Zealand Gazette, 1931, no. 7, p 118.
816
Wanganui minute book 93, 2 July 1931, p 134.
817
District Commissioner of Works to Commissioner of Works, 9 October 1961, AATC W3457/247
94/1/3016, Accommodation – State Highway 4 Parapara Road, ANZ Wellington.
288
Act, but failed to complete the taking procedure.818 A plan of the house site was made in
preparation for taking in 1938.819 It was later suggested that the proclamation had stalled
owing to doubt at the time concerning the legality of the Crown’s ability to take land from
local bodies.820
It was not until the early 1960s, when the surfaceman’s cottage was no longer required, that
title to the land was formally transferred to the Crown in preparation for disposal. On 11
August 1961, the Resident Engineer wrote to the District Commissioner of Works, advising
that the surfaceman’s cottage had become surplus to requirements and could therefore be
offered for sale.821 Reporting to the District Commissioner on 26 September 1961, the land
purchase officer confirmed that the property was of no further use to the Department and
recommended that it be transferred to the Department of Lands and Survey for disposal.822
This recommendation was approved by the National Roads Board.823 However, a search of
the title revealed that the site of the surfaceman’s cottage had never been proclaimed taken
under the Public Works Act, though purchase money of £519 had apparently been paid to
the Council.824 In order to correct this situation, the District Commissioner of Works was
requested to prepare a belated proclamation.825 The cottage site was taken on 22 December
1961 by a proclamation signed by the Governor General under the 1928 Act.826
The land was then declared to be Crown land subject to the Land Act 1948.827 The
declaration, which stated that the cottage site was no longer required for purpose for which
it was taken, was issued under section 35 of the 1928 Act. On 15 January 1962, when the
818
See correspondence in AATC W3457/247 94/1/3016, ANZ Wellington.
SO 19326, Wellington Land District, LINZ.
820
Author unknown, note on District Commissioner of Works to Commissioner of Works, 27 September
1961, AAZZ 889 W5339/19 62/49/8, ANZ Wellington, Roadmen’s Huts – Wanganui District, 1937-1981
ANZ Wellington.
821
Resident Engineer to District Commissioner of Works, 11 August 1961, AATC W3457/247 94/1/3016,
ANZ Wellington.
822
District Land Purchase Officer to District Commissioner of Works, 26 September 1961, AAZZ 889
W5339/19 62/49/8, ANZ Wellington.
823
Laing, 30 October 1961, on District Land Purchase Officer to District Commissioner of Works, 26
September 1961, AAZZ 889 W5339/19 62/49/8, ANZ Wellington.
824
Bell, notes, 10 October 1961, AAZZ 889 W5339/19 62/49/8, ANZ Wellington.
825
Commissioner of Works to District Commissioner of Works, 31 October 1961, AAZZ 889 W5339/19
62/49/8, ANZ Wellington.
826
New Zealand Gazette, 1961, no. 80, p 1925.
819
289
declaration took effect, the land became the responsibility of the Department of Lands and
Survey, which proceeded to take action to dispose of the cottage site. The process of
disposing of surplus Crown lands at this time was defined in Part IV of the Land Act 1948.
As noted in the Overview, there was no requirement at this time that land taken for public
works had to be offered back to former owners. Even if such a provision had existed, the
Maori owners of the land taken in 1931 may not have been protected because the cottage
site had been taken from the Waimarino County Council.
The Lands and Survey file dealing with the disposal of the cottage site has not been
located.828 It is therefore only possible to provide a brief outline of the disposal process.
The procedure for selecting a purchaser was set out in sections 53 and 54 of the 1948 Act.
Section 53 provided that the Crown Land Board could by public notice call for applications
for any Crown land available for alienation under the Act. The notice was to contain price
or rental details and also the period during which the application was open. Alternatively,
section 54 of the 1948 Act provided that, in certain cases, the Board could alienate without
public notice or competition. It was this latter option that was followed during the disposal
of the cottage site, which was sold to the Wanganui Pest Destruction Board. A certificate of
title issued in the Board’s name on 20 August 1962 details that the land was acquired under
section 59 of the 1948 Act. 829 The Board paid $1600 for the property.830
In 1976, the Wanganui Pest Destruction Board sold the cottage site to private interests.831
The property is presently owned by Thomas Hawira, who purchased it in May 1996. It is
now known as Section 18 of Block XV, Makotuku Survey District.
11.4 Disposal of Gravel Pit
827
New Zealand Gazette, 1962, no. 1, p 10.
The file was held by the Wellington District office of the Department of Lands and Survey, reference
number 3/414.
829
CT A2/1362, Wellington Land District, LINZ.
830
Armstrong, Barton, and Company to Commissioner of Crown Lands, 8 February 1974, LS 8/5/196,
Reserves General – Block XV, Makotuku Survey District, DOC Wanganui.
831
CT A2/1362, Wellington Land District, LINZ.
828
290
On 3 July 1961, 5.6 perches was taken from the gravel pit for a deviation of the Parapara
Road.832 With the taking of the cottage site in December 1961, the gravel pit was further
diminished to an area of 3 acres 23.4 perches. This land was held by the Waimarino County
Council until 1989, when it was brought under the control of the Waimarino District
Council.833 Subsequent local government changes saw the gravel pit become the property
of the Ruapehu District Council.
On 3 April 1992, Ruapehu District Council resolved to dispose of the gravel pit because it
was deemed to be surplus to operational requirements.834 The meeting at which the disposal
was considered had been notified by an advertisement placed in local newspapers on 24
March 1992.835 This notice was given in accordance with section 230(1) of the Local
Government Act 1974.836 On 12 March 1992, prior to the publication of the advertisement,
accountants representing Murray Hawira, a descendant of one of the original owners, had
advised the Council that their client would be interested in making an offer on the gravel pit
if it became available for purchase.837 It is unclear whether Hawira had learnt that the
Council was about to consider the disposal of the gravel pit, or whether his approach at this
time was merely coincidental. In October 1993, the land’s designation as a gravel pit was
lifted in accordance with section 182 of the Resource Management Act.838
Aware that the gravel pit had been compulsorily acquired under public works legislation,
the Council sought to follow the offer back provisions of the Public Works Act 1981. With
certain exceptions, Section 40(2) of the 1981 Act required that surplus land was to be sold
‘by private contract to the person from whom the land was acquired or to the successor of
that person’. Section 41 provided that Maori land could alternatively be returned by a
vesting order issued under section 436 of the Maori Affairs Act 1953, and later, section 134
of Te Ture Whenua Maori Act 1993.
832
New Zealand Gazette, 1961, no. 41, p 906.
Document B044048.1, Wellington Land District, LINZ.
834
Property Officer to Chief Executive, 26 March 1994, File 12740-25, Ruapehu District Council.
835
Record of advertisement for disposition of property, File 12740-25, Ruapehu District Council.
836
When local bodies undertake to dispose of land, section 230(1) requires that notice be given of the time
and date of the meeting at which it is proposed that the disposal resolution will be passed. The notice must be
given at least 14 days in advance of the meeting and must provide a description of the property intended for
disposal.
837
Blight, Dodgson, & Co, to General Manager, 12 March 1992, File 12740-25, Ruapehu District Council.
838
Property Officer to Chief Executive, 26 March 1994, File 12740-25, Ruapehu District Council.
833
291
On 21 March 1994, Murray Hawira wrote to the Council, offering to purchase the property
for $1500, the government valuation.839 It is evident that Hawira had discussed the
purchase of the land with the Council’s Property Officer. He enclosed a letter from the
Registrar of the Maori Land Court, which confirmed that he was a descendent of the
original owners.840 In this letter, the Registrar explained that the taken land had been part of
Ohotu 1C2 and that Hawira’s mother had been one of the several hundred owners of this
subdivision. On 24 March 1994, the Council’s Property Officer prepared a memorandum
for the Chief Executive, recommending that the property be sold to Hawira. The
memorandum concluded that:
All legal requirements for the disposal of this property has [sic] been met and the Chief
Executive pursuant to Section 40(2) of the Public Works Act is empowered to sell the land to a
successor of the person from whom the land was originally acquired. Mr Hawira has offered
proof of succession.841
The recommendation to sell to Hawira was approved by the Executive Officer on 28 March
1994.842 Upon payment of the $1500 purchase price, the property was transferred into
Hawira’s ownership on 8 August 1994.843
In mid-1996, the former gravel pit was set apart as a Maori reservation under section 338(1)
of Te Ture Whenua Act 1993.844 The reservation was stated to be ‘for the purpose of a
marae for the common use and benefit of the descendants of the original owners of
Tuhiariki.’ In 1997, an amendment to the reservation notice identified that the land was
general land, not Maori freehold land.845
839
Hawira to Ruapehu District Council, 21 March 1994, File 12740-25, Ruapehu District Council.
Registrar to Chief Executive, 18 March 1994, File 12740-25, Ruapehu District Council.
841
Property Officer to Chief Executive, 26 March 1994, File 12740-25, Ruapehu District Council.
842
Chief Executive, 28 March 1994, note on Property Officer to Chief Executive, 26 March 1994, File 1274025, Ruapehu District Council.
843
CT 424/256, Wellington Land District, LINZ.
844
New Zealand Gazette, 1996, no. 48, p 1310.
845
New Zealand Gazette, 1997, no. 75, p 1857.
840
292
11.5 Conclusion
Owing to the lack of archival evidence, this case study does not reflect significantly on
matters concerning the taking process. However, it does raise important issues relating to
disposal procedures. The land that was taken in 1931 was disposed of in two parts: the
portion occupied by the surfaceman’s cottage was disposed of in 1961, while the remaining
area of the gravel pit was disposed of in 1994.
The 1961 disposal was carried out without any efforts to offer the land back to the original
owners. At this time, there was no legislative provision for offer back, which had been
removed in 1954 with the repeal of section 35 of the Public Works Act 1928.846 However,
evidence from the Wairarapa ki Tararua inquiry district suggests that the Department of
Lands and Survey continued to apply the offer back principle.847 It seems that the 1961
disposal may have been undertaken without offer back to the original Maori owners
because, prior to disposal, the site of the surfaceman’s cottage was taken by the Crown
from the Waimarino County Council. Offer back was possibly considered only for the
Council, which seemingly had no further use for the land. It is unclear whether there are
other cases where offer back to original owners was overlooked for land that had been
taken by a local authority and then subsequently acquired by a central government agency.
Though the Ruapehu District Council sought to comply with the offer back provisions of
the 1981 Act when it disposed of the remaining area of the gravel pit in 1994, the interests
of all the original owners were not taken into account. The Council believed that it was
complying with the offer back provisions by allowing the land to be purchased by an
individual whose mother had had an interest in the land. However, information provided by
the Maori Land Court showed that there had been several hundred owners, all of whom
were entitled to consideration under the statutory right of repurchase. The Council may
have believed that disposal to one individual was the only practicable course of action
because it did not have the resources to located every owner or successor. Moreover, even
if all these individuals had been approached, it is uncertain whether a collective agreement
846
Section 4, Public Works Amendment Act 1954.
293
would have been obtained from those who wished to take advantage of the offer back
protection. It appears that this situation is a significant difficulty that is not uncommonly
faced during the disposal of land that was formerly held by Maori in multiple ownership.
847
Marr, Cleaver, Schuster, pp 218-219.
294
Figure 18: Otukou Metal Pit and Quarry (Source: based on cadastral
information from Terraview, Terralink NZ)
295
Chapter 12: Metal Pits – Otukou Metal Pit and Quarry Taking (1969)
12.1 Introduction
On 24 February 1969, a total area of 94 acres 2 roods 39 perches was taken for a metal pit
and quarry at Otukou. The land required for the metal pit, an area of 77 acres 1 rood 39
perches, was taken from Okahukura 2, Okahukura 2B1A, and Okahukura 2B2. The land
required for the quarry, an area of 17 acres 1 rood, was taken entirely from Okahukura 2B2.
All of this land was held by Maori under Crown derived title. The metal pit and quarry
were both taken in connection with the construction of the Tongariro Power Scheme. The
taking was carried out by the Ministry of Works under the Public Works Act 1928. Notice
of intention to take had been given on 3 October 1968. On 26 January 1971, compensation
of $234.80 was paid to the Maori Trustee for the land taken for the quarry. On 16
December 1974, compensation of $3161.44, which included interest, was paid for the land
taken for the metal pit. These payments were only for the value of the land. The owners
retained a right to claim compensation for the metal taken. It appears that this right has
never been exercised.
Sometime after the taking, Otukou metal pit and quarry were brought under the
administration of the New Zealand Electricity Department (NZED). It appears that material
was last extracted from these lands in the late 1970s. In 1980, an unsuccessful attempt was
made to transfer the metal pit and quarry to the New Zealand Forest Service. In 1985, it
was recommended that they be returned to the Maori owners, but no action was taken. In
1988, restructuring of the electricity industry saw certain assets of the Tongariro Power
Scheme transferred to the Electricity Corporation of New Zealand (ECNZ), a State Owned
Enterprise (SOE). Along with other lands, Otukou metal pit and quarry were withheld from
this process to enable further consideration of whether they should be transferred. In 1998,
the assets of ECNZ were transferred to a new SOE, Genesis Energy Limited. During a
recent review of Tongariro Power Scheme land assets, undertaken by Treasury and
Genesis, Otukou metal pit and quarry were deemed to be ‘non-core lands’, and therefore
296
remain in Crown ownership. In 2004, they will be transferred to LINZ for management and
disposal.
12.2 The Taking
Efforts to locate the Ministry of Works’ files that deal with the taking of land for Otukou
metal pit and quarry have been unsuccessful.848 It is therefore only possible to provide a
brief account of the taking. The notice of intention to take, which was published in the New
Zealand Gazette on 3 October 1968, stated that the metal pit and quarry were both required
for the Tongariro Power Scheme.849 The notice detailed that a plan of the lands – described
as being ‘adjacent to Otukou Maori School, on Tongariro Power Scheme access road No. 5’
– was available for inspection at the Turangi post office. It also advised that objections
were to be made in writing to the Minister within 40 days of first publication of the notice.
The lands required for Otukou metal pit and quarry were taken by a proclamation signed by
the Governor-General on 23 January 1969.850 The following areas were taken:
Otukou Metal Pit
Block
Okahukura 2
Okahukura 2B1A
Okahukura 2B2
Total
Area
4a 0r 02p
9a 1r 07p
64a 0r 30p
77a 1r 39p
Otukou Quarry
Block
Okahukura 2B2
Area
17a 1r 00p
848
The relevant files, detailed in the notice of intention to take and taking proclamation, are PW 92/12/67/6,
PW 92/12/67/6/10, DO 92/25/0/15/1/2, and DO 92/25/0/15/3/2. None of these files appear to be held at
National Archives.
849
New Zealand Gazette, 1968, no. 61, p 1706.
850
New Zealand Gazette, 1969, no. 9, pp 266-267. The proclamation detailed that the metal pit contained only
areas from Okahukura 2B2 and Okahukura 2. However, the plan of the metal pit shows that it also included
land from Okahukura 2B1A. SO 27029, Wellington Land District, LINZ.
297
Evidence presented in Chapter 3 indicates that, from the mid-1950s, the Ministry of Works
believed greater effort should be made to acquire land by negotiation. Owing to the absence
of file evidence, it is unclear whether the Ministry attempted to negotiate the purchase of
the area required for Otukou metal pit and quarry. It is possible that the land was acquired
under the compulsory provisions of the Public Works Act after efforts to negotiate with the
owners were unsuccessful. Claimant Rawinia Konui asserts that the owners were strongly
opposed to the taking of the metal pit and quarry, indicating that they might have rejected
approaches for a negotiated purchase.851 It is unclear whether the owners made a formal
objection to the taking.
Konui explains that an important reason behind the owners desire to retain the land was the
existence of an urupa within the area taken for the quarry. According to Konui, the urupa
was located upon a rock outcrop that, to the owners’ great distress, was blasted to obtain
metal. In carrying out the taking of Otukou quarry, the Ministry of Works neglected a
statutory requirement whereby land that contained an urupa could not be taken without the
consent of either the owners or the Governor-General in Council. (A search of the New
Zealand Gazette shows that an Order in Council was never issued for the quarry, and it
seems very unlikely that approval was given by the owners.) This long-standing protection
for land occupied by a ‘burial ground’ or ‘cemetery’ had been formalised by section 14 of
the Public Works Amendment Act 1948. Under section 18(b) of the 1928 Act, the
protection also applied to land occupied by any building, yard, garden, orchard, vineyard,
or land used as an ornamental park or pleasure-ground. Other case studies show that it was
standard practice for the Public Works Department, and later, the Ministry of Works, to
establish whether any of these features existed where land was proposed for taking. This
practice appears to have been overlooked prior to the Otukou quarry taking, or else carried
out without adequate scrutiny and consultation with the owners. Another possibility is that
the Ministry of Works was aware of the urupa, but had an eurocentric view as to what
constituted a ‘burial ground’ or ‘cemetery’, believing that an urupa located upon a rock
outcrop could not be described by either term.
851
Personal communication with Rawinia Konui at Chateau Tongariro research hui, 9 September 2004.
298
12.3 Compensation
Details of the compensation settlement for Otukou metal pit and quarry were provided in a
1985 report prepared by the Ministry of Works’ Land Purchase Officer and Assistant
District Property Officer, which addressed the question of disposal.852 The report noted that
on 26 January 1971, compensation of $234.80 was paid to the Maori Trustee for the quarry.
On 16 December 1974, compensation of $3161.44 was paid for the metal pit, which
included interest. These payments were only for the value of the land. The owners retained
a right to claim compensation for the metal taken, which appears to have never been
exercised. The 1985 report noted that no monies had ever been paid to the owners for the
materials extracted from the metal pit and quarry. The provision that enabled the owners to
claim compensation for extracted metal suggests that there may have been an established
local market for metal other than to the Ministry of Works or local authorities. In the case
of Ohakune scoria pit, which is discussed in Chapter 10, the Ministry refused to pay
royalties to owners where such a market did not exist.
12.4 Moves Toward Disposal
Otukou metal pit and quarry were managed as assets of the NZED. On 19 August 1976, the
Project Engineer wrote to the Chief Power Engineer, suggesting that the metal pit and
quarry be declared surplus land.853 He explained that the quarry had largely been used by
‘Wanganui forces’ for reconstructing State Highway 47 and the various access roads that
formed part of the Tongariro Power Scheme. The metal pit, however, had been used by
‘Power Development forces or their agents’. The Project Engineer stated that the quarry
had not been worked for many years, while the metal pit had been worked only
occasionally over the preceding two or three years. He suggested that approval be sought
from head office of the NZED before the lands were declared surplus. The Project Engineer
852
Land Purchase Officer and Assistant District Property Officer to Commissioner of Works, 13 August
1985, AAQU W3428 box 385A 92/12/67/6/10, Maori Owners Western Diversion, 1965[1976]-1986, ANZ
Wellington.
853
Project Engineer to Chief Power Engineer, 19 August 1976, AAQU W3428 box 385A 92/12/67/6/10,
ANZ Wellington.
299
indicated that the New Zealand Forest Service and the National Parks Authority might be
interested in taking over the metal pit and quarry.
A decision on the quarry and metal pit was deferred until repairs had been carried out on
the Te Whaiau canal.854 In February 1980, the Ministry of Works was advised by the
NZED that it had no further requirement for either the metal pit or the quarry, and that
disposal action could therefore be initiated with the New Zealand Forest Service, which had
expressed an interest in the lands.855 In a report dated 27 March 1980, the Senior Land
Purchase Officer and the Assistant District Property Officer recommended that the metal pit
and quarry be transferred to the Forestry Service for a total consideration of $9500.856
Though this recommendation was approved by the Assistant Director of Property Services,
the transfer did not proceed, seemingly because the Forestry Service objected to the price
and only wished to secure the metal pit.857
In August 1985, the Land Purchase Officer and District Property Officer recommended that
the metal pit and quarry be returned to the Maori owners at nil consideration by an
application to the Maori Land Court under section 42 of the Public Works Act 1981.858
(This recommendation also applied to a second metal pit, an area of 31 acres 1 roods 30
perches that had been taken from Okahukura 8M2C2B2 in 1968.859) The report by the Land
Purchase Officer and District Property Officer noted that trustees acting on behalf of the
owners had asked that the land be returned at nil consideration, a proposal that had been
supported by the Minister of Maori Affairs. The Land Purchase Officer and District
Property Officer thought that this proposal was reasonable, pointing out that compensation
had been paid only for the land, with the owners having reserved the right to claim
854
Project Engineer to Chief Power Engineer, 13 June 1979, AAQU W3428 box 385A 92/12/67/6/10, ANZ
Wellington.
855
General Manager, New Zealand Electricity, to District Commissioner of Works, 20 February 1980, AAQU
W3428 box 385A 92/12/67/6/10, ANZ Wellington; Caird to Chief Power Engineer, 25 July 1979, AAQU
W3428 box 385A 92/12/67/6/10, ANZ Wellington.
856
Senior Land Purchase Officer and Assistant District Property Officer to District Commissioner of Works,
27 March 1980, AAQU W3428 box 385A 92/12/67/6/10, ANZ Wellington.
857
Land Purchase Officer and Assistant District Property Officer to Commissioner of Works, 13 August
1985, AAQU W3428 box 385A 92/12/67/6/10, ANZ Wellington.
858
Land Purchase Officer and Assistant District Property Officer to Commissioner of Works, 13 August
1985, AAQU W3428 box 385A 92/12/67/6/10, ANZ Wellington.
300
compensation for the metal taken. Again, for reasons that are unclear, no action resulted
from this recommendation. The file in which the relevant correspondence is located was
closed soon after the recommendation had been written.
In 1988, Tongariro Power Scheme assets were transferred to the Electricity Corporation of
New Zealand, a State Owned Enterprise.860 Otukou metal pit and quarry were among lands
that were withheld from this process to enable further consideration of whether they should
be transferred. In 1998, the Tongariro Power Scheme assets held by ECNZ were transferred
to Genesis Power Limited, another SOE. (Genesis was one of three companies created from
a division of ECNZ.) This process was managed by Treasury, which recently undertook a
review with Genesis to determine which land assets should be held by the SOE as ‘core
lands’, and which should be managed by the Crown as surplus or ‘non-core lands’. Otukou
metal pit and quarry have been deemed to be non-core lands, and in 2004 will be
transferred to LINZ for management. As surplus lands, LINZ will undertake disposal action
in accordance with the procedures discussed in Chapter 14.
In addition to the metal pit and quarry, a third area of land acquired from Maori at Otukou
will be transferred to LINZ as non-core land. This land comprises 10 acres of Okahukura 2,
which was originally secured in 1926 as the site for a Native School.861 It lies adjacent to
the area taken for the metal pit. In 1968, it was set apart for water development purposes in
connection with the Tongariro Power Scheme.862
12.5 Conclusion
The 1969 taking of Otukou metal pit and quarry shows that the Ministry of Works
continued to acquire land compulsorily, even though, from the mid-1950s, it viewed
purchase by agreement as the most appropriate method of acquisition. An absence of file
859
New Zealand Gazette, 1968, no. 53, p 1401.
Information on the recent history and present status of the metal pit and quarry has been provided by Roger
Miller on behalf of the Secretary to the Treasury. Personal correspondence with Roger Miller, Treasury, 5
January 2004.
861
New Zealand Gazette, 1926, no. 70, p 2903.
860
301
evidence means that it is unclear what efforts were made to negotiate with the owners of the
land taken for Otukou metal pit and quarry. It seems possible that the Ministry of Works
pursued negotiations, but abandoned this approach because the owners were reluctant to
part with their land. Claimant evidence indicates that the owners were opposed to the loss
of the areas taken for the metal pit and quarry.
This case study raises issues about the extent to which urupa were satisfactorily protected
by taking authorities in compliance with existing legislation. Claimant evidence explains
that an important reason behind the owners desire to retain the land was the existence of an
urupa within the area taken for the quarry. Located upon a rock outcrop, it is claimed that
the urupa was blasted to obtain metal. In taking the Otukou quarry land, the Ministry of
Works neglected the statutory requirement set out in section 14 of the Public Works
Amendment Act 1948. Under this section, land containing a ‘burial ground’ or ‘cemetery’
could not be taken without the consent of either the owners or the Governor-General in
Council. Prior to taking land under the Public Works Act, the Ministry of Works usually
undertook a check to establish that the land was not occupied by a ‘burial ground’ or
‘cemetery’, or by any of the features set out in section 28(b) of the 1928 Act. In the case of
the Otukou quarry taking, this standard check was either not carried out, or was undertaken
without suitable care and consultation with the owners. It is possible that the Ministry of
Works was aware of the urupa, but did not believe that it should be viewed as a ‘burial
ground’ or ‘cemetery’ because it was located upon a rock outcrop.
It is notable that the compensation settlement for Otukou metal pit and quarry provided not
only a payment for the taken land, but also entitled the owners to make subsequent royalty
claims for extracted metal. (This suggests that there may have been an established local
market for metal other than to the Ministry of Works or local authorities. In the case of
Ohakune scoria pit, which was taken in 1968, the Ministry refused to pay royalties to
owners upon the grounds that such a market did not exist.) It is unclear why the
compensation settlement did not cover the value of the taken land and the whole estimated
metal reserves. The payment of royalties was advantageous to the Ministry of Works
862
New Zealand Gazette, 1968, no. 51, p 1355.
302
because it meant that it would only have to pay for the metal that it used. However, it was
problematic for the former owners because of the difficulty of distributing royalty payments
to a large number of individuals whose personal entitlements would be small. It appears
that the former owners never made a claim for the metal taken from Otukou metal pit and
quarry.
Though metal was last extracted from Otukou metal pit and quarry in the late 1970s, a
decision relating to the disposal of these lands has only recently been The organisations that
have been responsible for the metal pit and quarry have clearly not viewed their disposal as
a matter of any urgency, a situation that has frustrated the former owners.863
863
Personal communication with Rawinia Konui at Chateau Tongariro research hui, 9 September 2004.
303
Figure 19: Water Supply Takings from Kai Iwi 5E2 (Source: based on cadastral
information from Terraview, Terralink NZ)
304
Chapter 13: Water Supply – Kai Iwi Takings (1904, 1969, and 1975)
13.1 Introduction
In 1904, 1969, and 1975, the following areas were acquired from subdivisions of Kai Iwi
block for Wanganui’s water supply system:
Date of
taking
3 May 1904
Notice of intention
to take
28 February 1904
28 July 1969
19 June 1975
22 August 1968
not required
Block
Area
Kai Iwi 5C
Kai Iwi 5E
Kai Iwi 6J
Kai Iwi 5E2
Kai Iwi 5E2
Total
1a 0r 20.3p
3a 0r 24.4p
0a 3r 07.9p
0a 0r 35.1p
0a 2r 20.9p
5a 3r 28.6p
All of these areas were held by Maori under Crown derived title. The 1904 and 1969
takings were compulsory acquisitions that were respectively carried out under the Public
Works Act 1894 and the Public Works Act 1928. The 1975 taking was secured by an
agreement negotiated in accordance with section 35 of the 1928 Act. The 1904 taking was
executed by the Public Works Department on behalf of the Wanganui Borough Council.
The 1969 and 1975 takings were executed by the Ministry of Works on behalf of the
Wanganui City Council.
The Native Land Court assessed compensation for the 1904 taking on 22 June 1905. It
ordered that compensation of £10 was payable to the owners of Kai Iwi 6J. In accordance
with an agreement between the Council’s representative and a representative of the owners,
no compensation was deemed to be payable for the areas taken from Kai Iwi 5C and 5E. It
was considered that owners would suffer no loss from the taking because the land was
needed only for the laying of underground pipes. The owners were subsequently granted
easements over the areas taken from Kai Iwi 5C and 5E. No compensation details have
been located with regard to the 1969 taking. Prior to the 1975 taking, a meeting of
assembled owners agreed to accept $180 for the land required by the Council.
305
All the taken lands are now held by the Wanganui District Council. On 26 January 1999,
the Council was granted an easement over Kai Iwi 5E2 for the purpose of laying further
pipes.
13.2 Taking from Kai Iwi 5C, 5E, and 6J, 1904
As towns expanded, it was necessary for local authorities to make greater provision for
infrastructure such as water supply, sewerage, and rubbish dumps. The land required for
these services was often taken under the compulsory provisions of public works legislation.
It was typically located on the periphery of the towns and was sometimes owned by Maori.
In 1904, the Wanganui Borough Council began taking steps to acquire land for a significant
extension and enlargement of its waterworks at Kai Iwi. File evidence relating to this taking
has not been located.864 It is therefore only possible to provide a brief account of the taking
process. On 25 February 1904, the Town Clerk signed a notice of intention to take land for
the waterworks. This notice was published in the New Zealand Gazette on 28 February
1904.865 It provided a list of four schedules that specified the lands that were to be taken.
The notice detailed that the lands described in the first and second schedules, which were
owned by Europeans and comprised most of the required land, would be used as a water
catchment area and for the purpose of constructing a dam across the Okehu Stream. Land in
the third and fourth schedule, some of which was owned by Maori, was required for laying
pipes that would carry the water from the reservoir. The following table shows the various
areas required for the waterworks:
Schedule
One
Two
Three
864
865
Block
Part Section 10 and Part Section
11, Rangitatau, Blocks III and
VII, Nukumaru Survey District
Part Section 12, Rangitatau,
Block VII, Nukumaru Survey
District
Part Lot 12, Rangitatau, Block
VII, Nukumaru Survey District
Area
1640a 2r 00p
Owner
G F Moore
140a 0r 00p
Trustees of James Alexander
4a 3r 27p
Trustees of James Alexander
A search was undertaken at Archives New Zealand and at the Wanganui District Council Archive.
New Zealand Gazette, 1904, no. 8, pp 392-393.
306
Four
Kai Iwi 5C, Block
Nukumaru Survey District
XI,
1a 0r 20.3p
Kai Iwi 5E, Block
Nukumaru Survey District
XV,
3a 0r 24.4p
Kai Iwi 6J, Block
Nukumaru Survey District
XV,
0a 3r 07.9p
Pineaha Utiku, Ratana Te Urumingi,
Kahutaratara, Nehemia Te Urumingi,
and Te Wharepouri
Waaka Hakaraia as trustee of Tutira
Waaka Hakaraia, Hikurangi Waaka
Hakaraia, Kurupai Waaka Hakaraia,
and Ngapiki Waaka Hakaraia
Harata Hinekahu
The total area of Maori land required by the Council was 5a 0r 12.6p. All of this land was
stated to be occupied by Europeans, indicating that it was being leased. The notice of
intention to take detailed that a plan of the affected lands was available for inspection at the
Council offices. In accordance with statutory requirements, it also outlined the objection
procedure, stating that objections had to be made in writing to the Council within 40 days
of first publication of the notice. It is unclear whether any objections were made to the
proposed taking.
The lands required for Kai Iwi waterworks were taken by a proclamation signed by the
Governor on 3 May 1904 under the provisions of the Public Works Act 1894.866 The
proclamation detailed that the taken lands would vest in the Wanganui Borough Council. It
is evident that the proclamation had been prepared by the Public Works Department, the
name of the Acting Minister of Public Works appearing on the notice.
On 22 June 1905, the Native Land Court heard an application for an assessment of the
compensation payable for the taken Maori lands.867 The application was presented by a Mr
Treadwell, who appeared on behalf of the Borough Council. The owners were represented
by a Mr Marshall. Treadwell informed the Court that he had reached an agreement with
Marshall. He explained that it had been agreed that the owners were not entitled to
compensation for the areas taken from Kai Iwi 5E and 5C because ‘no damage is done.’
Compensation of £10 had been agreed upon for the area acquired from Kai Iwi 6J. It
appears that the land taken from Kai Iwi 5E and 5C was to be used only for underground
piping. Treadwell told the Court that the Council intended to grant an easement that would
866
867
New Zealand Gazette, 1904, no. 41, pp 1241-1242.
Wanganui minute book 53, 22 June 1905, p 22.
307
protect the owners’ ongoing use of the taken areas. Marshall expressed his agreement to the
terms presented by Treadwell. The Court ordered that compensation of £10 was to be paid
to the owners of Kai Iwi 6J.
The Court’s order did not specify that easements were to be created over Kai Iwi 5E and
5C. However, it is apparent from an examination of the title of Kai Iwi 5E that the Council
fulfilled this promise, granting the owners easements over the taken areas.868
13.3 Taking from Kai Iwi 5E2, 1969
In the late 1960s, the Wanganui City Council employed the compulsory provisions of the
Public Works Act 1928 to acquire further Maori land at Kai Iwi for water supply purposes.
On 16 August 1968, the Town Clerk signed a notice of intention to take 35.1 perches – a
little under a quarter of an acre – from Kai Iwi 5E2.869 The notice, which was published in
the New Zealand Gazette on 22 August 1968, detailed that the land was required for ‘the
establishment of a water bore forming part of the City Water Works’. On 14 August 1968,
the Assistant City Solicitor wrote to the District Commissioner of Works, enclosing a copy
of the notice of intention to take.870 He described the land to be ‘fairly useless’, and
explained that one of the Council’s water bores had already been sunk on the site. (It is
unclear whether this work had been undertaken with the owners’ approval.) The Assistant
City Solicitor advised that the Maori Trustee would be attending to the question of
compensation, assuring that this would be paid in accordance with the statutory
requirements.
On 24 April 1969, the City Solicitor wrote to the District Commissioner of Works,
enclosing documentation that would enable a proclamation to be issued – a memorial by the
Council, a declaration by the Mayor, and a plan and area schedule.871 Before a
proclamation was prepared, the District Commissioner wrote to the Resident Engineer,
868
CT 395/228, Wellington Land District, LINZ; Transfer 56315, Wellington Land District, LINZ.
New Zealand Gazette, 1968, no. 52, p 1448.
870
Assistant City Solicitor to District Commissioner of Works, 14 August 1968, AATC W3457/247
19/6/0/1/1, Land Matters General – Wanganui City Council, 1948-1970, ANZ Wellington.
869
308
requesting a report as to whether there was any objection to the taking ‘from a departmental
or public viewpoint’, and also whether the land was occupied for any of the purposes set
out in section 18(b) of the Public Works Act 1928.872 Replying on 23 May 1969, the
Resident Engineer advised that there was no objection from a departmental or public
viewpoint, and that the land was not occupied for any of the purposes set out in section
18(b).873
On 28 May 1969, the District Commissioner of Works wrote to the Commissioner of
Works, enclosing an unsigned proclamation and related documentation.874 Further scrutiny
of the proposed taking was then carried out by head office staff. In a letter written on 16
June 1969, the Commissioner of Works pointed out that the existence of a concrete block
shed shown on the plan appeared to conflict with the Resident Engineer’s claim that the
land was not occupied for any of the purposes set out in section 18(b).875 He also noted that
part of the Council’s memorial had been worded incorrectly. In response, the District
Commissioner explained that the shed had been erected in connection with the water bore
that had been sunk in advance of the taking.876 He also advised that the Commissioner’s
comments had been passed onto the Council’s solicitors.
The proclamation was signed by the Governor-General on 30 June 1969.877 The land passed
into the City Council’s ownership on 28 June 1969. Details of the compensation settlement
for this taking have not been located.
871
Treadwell, Gordon, and Co to District Commissioner of Works, 24 April 1969, AATC W3457/247
19/6/0/1/1, ANZ Wellington.
872
District Commissioner of Works to Resident Engineer, 20 May 1969, AATC W3457/247 19/6/0/1/1, ANZ
Wellington.
873
Resident Engineer to District Commissioner of Works, 23 May 1969, AATC W3457/247 19/6/0/1/1, ANZ
Wellington. Under Section 18(b) of the Public Works Act 1928, land occupied by any building, yard, garden,
orchard, or vineyard could not be taken without the consent of the Governor-General in Council or the written
consent of the owners. Section 14 of the Public Works Amendment Act 1948 extended this provision to land
occupied by a cemetery or burial ground.
874
District Commissioner of Works to Commissioner of Works, 28 May 1969, AATC W3457/247 19/6/0/1/1,
ANZ Wellington.
875
Commissioner of Works to District Commissioner of Works, 16 June 1969, AATC W3457/247 19/6/0/1/1,
ANZ Wellington.
876
District Commissioner of Works to Commissioner of Works, 18 June 1969, AATC W3457/247 19/6/0/1/1,
ANZ Wellington.
309
13.4 Taking from Kai Iwi 5E2, 1975
In 1975, the Wanganui City Council acquired further land from Kai Iwi 5E2 for the site of a
pump operator’s house, an area of 2 roods 20.9 perches. The acquisition of this land
contrasts with the earlier takings because it was secured by agreement. Discussions appear
to have initially taken place between the City Engineer and the Maori Trustee in early
1973.878 Arrangements were then made to hold a meeting of assembled owners to consider
a resolution to sell the land to the Council for $180. (A special government valuation
carried out on 1 February 1973 had established a capital value of $150.879) After being
postponed owing to a lack of a quorum, the meeting was eventually held on 13 April 1973.
The resolution was passed with the condition that all survey, legal, and other charges were
to be met by the Council.880 The Maori Land Court confirmed the resolution on 12 June
1973.881
On 17 September 1973, the City Solicitor wrote to the District Commissioner of Works,
advising that the Council had entered into an agreement for the acquisition of further land
for water supply purposes.882 Enclosed with this letter was a plan of the land, an area
schedule, the Council’s memorial, and copies of the resolution and the Court’s confirmation
order. Under section 35 of the Public Works Act 1928, land taken by agreement had to be
confirmed by a declaration signed by the Minister of Works. There was some delay before
such a declaration was signed for the additional land required from Kai Iwi 5E2. The
Commissioner of Works requested confirmation that the land referred to in the resolution
was identical to that shown in the plan.883 There was also delay in securing the surrender of
877
New Zealand Gazette, 1969, no. 44, p 1362.
Wanganui City Council Works and Service Committee minute book, 2 July 1937, p 851, Wanganui
District Council Archive.
879
Notice of adjournment of meeting of owners scheduled to be held on 13 April 1973, 4/4783, Kai Iwi 5E2,
Office of the Maori Trustee, Wanganui.
880
Wanganui City Council Works and Service Committee minute book, 2 July 1937, p 851, Wanganui
District Council Archive.
881
Order confirming resolution of assembled owners, 12 June 1973, ABKK W4357/402 53/375/1 part 1,
Wanganui City Council Legalisation, 1950-1981, ANZ Wellington.
882
City Solicitor to District Commissioner of Works, 19 September 1973, ABKK W4357/402 53/375/1 part
1, ANZ Wellington.
883
Commissioner of Works to District Commissioner of Works, 9 October 1973, ABKK W4357/402
53/375/1 part 1, ANZ Wellington.
878
310
the leaseholder’s interest.884 A declaration was eventually signed by the Minister on 28
May 1975.885 It noted that the land would be deemed to be taken from 19 June 1975,
‘sufficient agreement to that effect having been entered into’.
13.5 Creation of Easements over Kai Iwi 5E2, 1999
On 26 January 1999, an order of the Maori Land Court granted the Wanganui District
Council an easement ‘to convey and lead water’ across to two areas of Kai Iwi 5E2.886 This
order was made under the provisions of Section 315 of Te Ture Whenua Maori Act 1993,
which empowered the Court to create such easements. The order required the Council to
pay $1000 to the Maori Trustee for distribution to the owners in full settlement of
compensation. A schedule attached to the order details the nature of the easement and the
conditions to which it is subject. The 1999 easement, which enables the Council to lay and
maintain underground pipes, contrasts with the 1904 taking, when the ownership of the
land was acquired for the same purpose.
13.6 Conclusion
Contrasting with the compulsory takings of 1904 and 1969, the Wanganui City Council’s
acquisition of land from Kai Iwi 5E2 in 1975 was the result of an agreement with the
owners. This appears to reflect a general shift, whereby local authorities increasingly
sought to acquire Maori land by negotiated consent, rather than under the compulsory
provisions of the Public Works Act. Evidence relating to the taking of defence land at
Waiouru in 1961, which is presented in Chapter 3, indicates that this approach had been
favoured by the Ministry of Works for central government takings from the mid-1950s, at
least where sizeable areas of land were involved. The Waiararapa ki Tararua Public Works
report, which examines several local authority takings, shows that local authorities were
884
Commissioner of Works to District Commissioner of Works, 14 February 1974, ABKK W4357/402
53/375/1 part 1, ANZ Wellington.
885
New Zealand Gazette, 1975, no. 51, p 1340.
886
Aotea minute book 89, 26 January 1999, pp198-205.
311
slower to move away from compulsory acquisition. The Kai Iwi water supply takings
suggest that local authorities in the Whanganui Inquiry District, as in the Wairarapa ki
Tararua Inquiry District, looked to acquire land by negotiation from the 1970s. As
discussed in the Overview, legislation that more easily enabled multiply owned Maori land
to be secured by agreement was not introduced until the passage of the Maori Affairs Act
Amendment Act 1974. Part IX of the 1974 Amendment Act empowered the Maori Land
Court to appoint an agent or agents to act on behalf of the owners of multiply owned Maori
land. The area acquired by the Wanganui City Council in 1975 from Kai Iwi 5E2 was
secured by negotiations undertaken prior to the passage of the 1974 Amendment Act. The
land was secured when a meeting of owners resolved to sell to the Council. This approach
to acquiring land was often problematic because of the difficulty of establishing a quorum
in cases where there were large numbers of owners who held small interests. An initial
meeting for the Kai Iwi 5E2 land was postponed owing to the lack of a quorum.
The Kai Iwi water supply takings highlight the important monitoring role played by the
Public Works Department, and later, the Ministry of Works, when executing takings on
behalf of local authorities. As discussed in the Overview, though local authorities were
legally entitled to carry out the whole taking process independently, it was standard practice
for the central government agency to manage the final part of the procedure. Before
recommending the proclamation for signing, the central government agency checked that
all statutory requirements had been fulfilled during the taking process. The Kai Iwi water
supply takings indicate that the Ministry of Works typically carried out this audit with some
care, ensuring that the takings were compliant with the legislation. Ministry of Works
officials raised questions relating to the areas secured by the Council in 1969 and 1975,
requiring certain matters to be clarified before proceeding with formal acquisition.
312
Chapter 14: Contemporary Disposal Practice for Crown Land
14.1 Introduction
This chapter focuses on the current disposal provisions that apply to surplus land that was
acquired under public works legislation, which provide former owners with a right of
repurchase. It also looks at the mechanisms that exist to protect Maori interests during the
disposal of surplus Crown land. These procedures, it is noted, were not introduced until the
early 1990s, after large areas of surplus Crown land, particularly railway land, had been
disposed of in accordance with the ‘rationalisation’ policies of introduced by the Labour
Government in the 1980s.
14.2 Disposal Provisions of the Public Works Act 1981
When land held for a public work becomes surplus and is to be disposed of, former owners
or their successors possess a right of repurchase under section 40 of the Public Works Act
1981. This provision applies both to Crown land and land held by local authorities. In the
case of surplus railway land, offer back to former owners is provided by section 23 of the
New Zealand Railways Corporation Restructuring (NZRCR) Act 1990. Procedures relating
to the statutory right of repurchase must be followed before surplus Crown land is subject
to the mechanisms for the protection of Maori interests, which are outlined below.
The offer back provision applies only if the land is not required for another public work.887
In cases where land is required for another public work, it is transferred in accordance with
section 50 of the 1981 Act. If part of the surplus land is required for another public work,
only the required portion is transferred, leaving the residue for disposal. This has been the
case with Putiki Rifle Range, an area of 25.3522 hectares, which was taken in 1904 and is
887
Section 40(1)(a) of the Public Works Act 1981.
313
presently in the process of disposal.888 In advance of disposal, an area of 5982m2 used for a
sewerage pond has been transferred to the Wanganui District Council under section 50.
Similarly, an area of 3514m2 has been transferred to Transit New Zealand.
Even when land is not required for another purpose, there are certain situations where offer
back to former owners is inapplicable. The offer of repurchase does not apply if the chief
executive of LINZ or the local authority considers that it would be ‘impracticable,
unreasonable, or unfair to do so’.889 LINZ’s Property Regulatory Group identifies, as a
guideline, that this provision might apply if any of the following circumstances exist:
•
The person from whom the land was acquired has died and the successors are also dead.
•
It is impossible to offer back the original parcels of land. This could arise where the
Crown has acquired several parcels of land and amalgamated these into one title before
constructing substantial improvements that straddle the original parcel boundaries.
•
The Crown cannot obtain and therefore give title because of the size, shape, or location
of the land. (If the surplus land is less than the minimum holding allowable in the local
District Plan, accredited suppliers may offer the land to an adjacent land owner.)
•
The land was acquired from a company that has been wound down or dissolved.
•
The whole of a property was acquired at the owner’s insistence, even though only part
of it was required for the public work. An exemption of the right of repurchase may be
appropriate in respect of the surplus balance.
•
The cost of offer back for land of little value exceeds the return the Crown will get from
the land.890
Surplus land may also not be offered back for repurchase in cases where there has been ‘a
significant change in the character of the land for the purposes of, or in connection with, the
public work for which it was acquired or is held’.891 LINZ’s Property Regulatory Group
888
Personal communication with Sam Pritchard, Property Rationalisation Team, New Zealand Defence Force,
21 January 2004.
889
Section 40(2)(a) of the Public Works Act 1981.
890
LINZ (Property Regulatory Group), ‘Statutory Right of Repurchase: accredited supplier standard 4’, LINZ,
July 2002, pp 66-69.
891
Section 40(1)(b) of the Public Works Act 1981.
314
states that the basic test of a significant change of character is whether the former owners
‘would receive something substantially different from what was lost when the land was
taken or acquired’.892 A further test is whether the former owner would able to recognise
the land physically as being the same as that acquired from them for the public work. The
Property Regulatory Group identifies the following examples of ‘significant change’:
•
Land reclamation.
•
Major landscaping works.
•
Changes that have taken place as a result of hydro-electric works.
•
Erection of a substantial building on previously vacant land.
•
Erection of a residential house (and associated services) on a previously vacant section.
•
Demolition of improvements which were used on the land at the time of acquisition and
subsequent change of zoning/use of the land.
Where land is to be offered back for repurchase, preference for entitlement to the offer lies
firstly with the person or persons from whom the land was acquired. If the former owner is
deceased, the offer must be made to that individual’s successor or successor in probate.
Section 40 provides that the land is to be offered at current market value unless the chief
executive of LINZ or the local authority considers that it is reasonable to sell at a lesser
price.893 LINZ’s Property Regulatory Group identifies that land might be offered at less that
current market value if any of the following circumstances are relevant:
•
The Crown compulsorily took the land and no compensation was paid.
•
The land was confiscated from Maori owners or the land was taken for a public work
under special legislation without compensation being paid.
•
The land was gifted to the Crown for a specific purpose and that purpose has passed.
•
An agency instructs LINZ that it agrees to disposal of its own land at less than current
market value in order to meet other objectives related to departmental and/or
government policy.
892
893
LINZ, ‘Statutory Right of Repurchase’, pp 71-72.
Section 40(1)(c) and (d) of the Public Works Act 1981.
315
•
There is a clear net financial benefit to the Crown/Vendor Agency – for example, where
the offeree agrees to meet survey/title costs that exceed the market value of the land.
•
The land is waahi tapu.894
Where land is to be offered back to Maori owners, section 41 of the 1981 Act provides that,
as an alternative to the process of sale defined in section 40, the land can be returned by a
vesting order issued under section 134 of Te Ture Whenua Maori Act 1993. This requires
the disposing authority to make an application Maori Land Court, identifying to whom the
land is to be vested in and the price and other terms of the vesting.
Problems with the disposal of Maori land under the 1981 Act have been identified in the
case studies that concern Ohakune scoria pit (Chapter 10), Ohuta gravel pit (Chapter 11),
and Otukou metal pit and quarry (Chapter 12). In the Ohakune scoria pit case, compliance
with the offer back provision was difficult because of the large number of former owners.
Identifying the owners and successors who were entitled to the right of repurchase posed a
problem that was beyond the resources of the disposing agency. The disposal of Ohuta
gravel pit also concerned a large number of former owners. However, the Ruapehu District
Council believed that it was complying with the offer back provision when it sold the land
to an individual who was a descendant of one of the former owners. This disposal did not
accommodate the interests of other former owners and successors, who were not consulted,
and raises the issue of whether disposals handled by local authorities should be subject to
central government monitoring. The disposal of Otukou metal pit and quarry, which has not
yet been finalised, shows that decision-making concerning unwanted public works land is
sometimes very prolonged. It appears that material was last extracted from the metal pit and
quarry in the late 1970s.
Some claimants have expressed frustration at the way the disposal process is managed.895
They state that the private contractors, or ‘accredited suppliers’, who handle disposals on
behalf of LINZ, are sometimes unwilling to discuss the disposals they are managing or
894
895
LINZ, ‘Statutory Right of Repurchase’, pp 20-21.
This matter was raised by claimants at a research hui held at Raetihi on 29 March 2003.
316
provide information on the land’s status. The claimants believe that communication should
improved during the disposal process.
In the Turangi Township Report, the Tribunal examines the offer back regime of the 1981
Act with regard to the disposal of Maori lands that had been taken under the 1928 Act. The
Tribunal states that the offer back provisions are deficient in a number of respects.896 It
notes that there is no requirement for former Maori owners to be consulted when offer back
is deemed to be impracticable, unreasonable, or unfair, or there has been a significant
change in the character of the land. The Tribunal points to evidence of instances where
Maori owners were bypassed and surplus land was sold directly to third parties. It was
identified that the claimants were prejudicially affected by the offer back provisions 1981
Act, which:
•
permit the Crown, in certain circumstances, without consultation with former Maori
landowners or their successors, not to offer surplus land back to such former owners;
•
permit the Crown to retain the whole of the profit from the sale of such surplus land at
current market value, whether sold back to the former Maori owners from whom the
land was compulsorily taken or on-sold to a third party;
•
fail to require the Crown to make allowances for the circumstances surrounding the
compulsory acquisition of the land from former Maori owners, including the need for
the compulsory acquisition of the land or, if the use of the land was essential, whether it
was necessary to acquire the freehold of the land;
•
permit the Crown to offer to sell such surplus land at a price or on conditions which are
manifestly in excess of the ability of the former Maori owners or their successors to
meet;
•
fail to require the Crown to have regard to the special circumstances of multiple Maori
owners of such land and to seek to accommodate such circumstances; and
896
Waitangi Tribunal, Turangi Township Report 1995, Wai 84, Brookers, Wellington, 1995, p 320.
317
•
fail to permit the Crown to offer to sell the land to the wider hapu or tribal group to
which the former Maori owners belong, if such owners are unable or unwilling to
purchase surplus land offered to them by the Crown.897
As noted in the Overview, LINZ has recently undertaken a review of the Public Works Act
1981. One of the key drivers for the review is noted as being to ‘ensure that exercise of the
1981 Act powers, functions and duties is within a statutory framework that accords with
Treaty of Waitangi principles’.898 Any legislative changes have yet to be introduced.
14.3 Mechanisms for the Protection of Maori Interests
In the early 1990s, procedures were developed to protect the interests of Maori during the
disposal of Crown land. These procedures focused on providing sufficient land for Treaty
settlement purposes and protecting land of particular cultural significance. Concern for
these matters arose at a time when significant areas of Crown land were being disposed of
in accordance with the ‘rationalisation’ policies introduced by the Fourth Labour
Government.
The first Maori protection procedure to be developed for application to all Crown land
disposals was the ‘Protection Mechanism for Surplus Crown Land’ (PMSCL), which was
established in 1993.899 This mechanism was created to ensure that all surplus Crown assets
were considered for possible use in the settlement of Treaty claims, and to preserve the
Crown’s capacity to provide redress for well-founded claims. The PMSCL was revised in
1995 following a review carried out in response to submissions received from Maori. A
separate ‘Sites of Significance Process’ (SoS) process was created from this revision. The
PMSCL process, which is today administered by the Office of Treaty Settlements (OTS),
provides for surplus Crown land to be held in regional landbanks for Treaty settlement
897
Ibid, p 321.
LINZ, Review of the Public Works Act; Issues and Options public discussion paper, 2000.
899
Office of Treaty Settlements, ‘Protection of Maori Interests in Surplus Crown-Owned Land’, undated, p 3,
p 6.
898
318
purposes. The ‘Sites of Significance Process’, which is administered by Te Puni Kokiri
(TPK), focuses on protecting sites of cultural importance on surplus Crown land.
In addition to the regional landbanks that are dependent on the operation of the PMSCL
process, OTS operates two other types of landbank: the Crown Settlement Portfolio (CSP)
and the Claim Specific Landbanks (CSLB).900 The CSP operates within former raupatu
areas defined under the New Zealand Settlements Act 1863. Providing that there are no
statutory or contractual obligations to others, all surplus Crown land within a confiscation
area is automatically purchased by OTS for the landbank. The CSLBs were established to
protect Crown land for use in the following settlements: Ngai Tahu, Tainui, Muriwhenua
(1992), Whakatohea (1995), and Whanganui (1994). When a property becomes surplus in a
CSLB area, OTS consults directly with claimant representatives, who must decide whether
it is should be purchased by OTS for their CSLB to use in settlement of their claim. As the
Ngai Tahu and Tainui claims have been settled, the CSLBs for these claims is no longer
required. However, a right of first refusal now exists for surplus lands in these areas.
In the Whanganui Inquiry District, the PMSCL process applies only to the areas of land
that fall within the boundaries of the Whanganui, King Country, and Volcanic Plateau
regional landbanks. Surplus Crown land in the Whanganui CSLB must be offered to
Whanganui River Maori Trust Board for their landbank. The SoS process applies to all
surplus Crown land within the Inquiry District. As noted earlier, none of the existing
existing protection mechanisms apply when a right of repurchase exists.
In cases where the PMSCL and SoS processes are applicable, accredited suppliers must
submit details of surplus Crown lands to OTS for advertisement.901 A schedule of surplus
Crown properties is advertised in the Sunday News and the Sunday Star Times on the first
Sunday of every month except January. Applications for protection under the PMSCL and
SoS processes are invited for these lands. Coinciding with the monthly public notification,
900
901
Ibid, pp 4-5.
Ibid, p 15.
319
Maori on OTS’ database also receive a direct mailout of the list of surplus properties. The
database is compiled from:
•
TPK ’s National Iwi List
•
all applicants that have ever made an application under the PMI and SoS process
•
all claimants that have a claim registered with the Waitangi Tribunal, and
•
any interested Maori who have requested that they be sent Protection Mechanism
information.
14.4 Protection Mechanism for Surplus Crown Land
Under the PMSCL process, a property may be recommended for protection in a regional
landbank providing that:
•
at least one of the applicants has a Treaty claim registered with the Waitangi Tribunal
(or an endorsement from the claimant to use the claim) and the property is within the
boundaries of the registered claim
•
the applicant’s reason as to the significance of the site to the claimants is accepted
•
the reasons given by the applicants for protecting the property justify the cost of
landbanking the property until settlement.902
The value of the proposed properties is assessed against the established financial limit for
the relevant claim area of the regional landbank. This limit provides a maximum value for
the protected properties.903 Applications under the PMSCL process are assessed by an
‘Officials Committee’, which is made up of representatives of the following agencies:
Office of Treaty Settlements (Chair), The Treasury, Crown Company Monitoring Advisory
Unit, Te Puni Kokiri, Ministry of Health, and Land Information New Zealand.904 The
Officials Committee makes recommendations to Cabinet Ministers, who decide whether or
902
Ibid, p 17.
Ibid.
904
Ibid, p 18.
903
320
not to approve the recommendations.905 Three Ministers have the delegation from Cabinet
to consider the Officials Committee’s recommendations: the Minister in Charge of Treaty
of Waitangi Negotiations, the Minister of Finance, and the Minister of Maori Affairs. In
exceptional circumstances the Ministers may consider exempting a property from
landbanking to allow it to be sold to a specific third party.906 This policy might be
applicable, for example, in cases where the surplus land is required to provide continuing
community services. If Cabinet agrees to such an exemption, provision may be made to
give the Crown a right of first refusal if the property is no longer needed, enabling it to be
reconsidered for landbanking.
14.5 Sites of Significance Process
The SoS process focuses on the protection of sites of significance on surplus Crown-owned
land that is being considered for sale.907 The process is open to any Maori who can prove an
association with the site, regardless of whether or not they have a Treaty of Waitangi claim.
Sites must have identifiable boundaries and fall into one of the following categories:
•
burial place
•
rua koiwi (burial caves)
•
sacred shrine
•
underwater burial place or cavern
•
waiora or source of water (spring)for healing, or
•
source of water for death rites.
The SoS process complements and works in tandem with the PMSCL process. The aim of
the process is to:
905
Ibid, p 19.
Ibid, p 20.
907
Ibid, pp 6-7.
906
321
•
obtain protection for significant sites by using existing statutory and administrative
provisions, and
•
have the protection in place before the land is transferred out of Crown ownership.
Applicants work with the Vendor Agency to seek agreement as to the form of protection.
These meetings are facilitated by TPK, though a committee of officials from relevant
government departments mediate in cases where agreement can not be reached.
14.6 Disposals undertaken prior to Introduction of Protection Mechanisms
It is evident that in the 1980s and early 1990s, significant areas of Crown land were
disposed of before adequate procedures were developed to protect Maori interests. This can
be seen, for example, in the disposal of surplus railway lands, one aspect of the Labour
Government’s policy to rationalise the rail system. The disposal of unwanted railway land
was undertaken from the late 1980s by the New Zealand Railways Corporation (NZRC).908
In 1990, all remaining railway lands were formally designated as either ‘core’ or ‘noncore’. From October 1990, the core lands were leased for a period of 80 years to New
Zealand Rail Limited, a Crown Transferee Company. (In mid-1993, New Zealand Rail
Limited was sold, later being renamed Tranz Rail Limited.) In late 1990, the NZRC began
to dispose of the non-core lands. The disposal of these lands was handed over to LINZ in
February 1994. By this time, about 30 percent of the non-core lands – those of greatest
value – had been alienated.909
In the disposals that it managed up until 1990, the NZRC had to comply with the offer back
provisions of sections 40 and 41 of the Public Works Act 1981.910 Following the passage of
the of NZRCR Act 1990, the NZRC was required to adhere to the similar offer back
provisions of section 23 of that Act. No formal mechanisms for the protection of Maori
interests had been established when the disposals began in the late 1980s. However, from
908
This description of the disposal of railway lands from the late 1980s has been prepared from verbal details
provided by Peter Trotman, who has been associated with the New Zealand Railways Corporation since 1973.
Personal communication with Peter Trotman, New Zealand Railways Corporation, 29 November 2002.
909
This figure is a recollection, and therefore may not be precisely accurate.
910
Personal communication with Peter Trotman, New Zealand Railways Corporation, 29 November 2002.
322
1991 to mid-1992 the NZRC followed an internal process of examining whether the lands
that were being disposed of were subject to specific Treaty claims. A consultation process
was undertaken in cases where land was found to be subject to a claim. A more robust
measure to protect Maori interests in the disposal of railway lands was introduced around
mid-1992, when the Crown Congress Joint Working Party (CCJWP) was established.
Before its abandonment in mid-1993, this party gave clearance to a number of disposals,
most of which concerned land in the Auckland and Wellington metropolitan areas.
It is evident that the railway lands that were disposed of before any efforts were made to
protect Maori interests included areas within the Whanganui inquiry district. In the late
1980s, for example, the Sunshine Railway Settlement was sold to private interests. This
property, located on the outskirts of Taumarunui, contained approximately 50 dwellings.
The land, Parts Section 13 and 14 of Hunua Survey District, had originally been purchased
by the Crown out of the Waimarino block.911 Sections 13 and 14 were set aside as a public
domain with other lands, and then vested in the Wanganui River Trust. (The Trust had been
established in 1891 with the objective of improving the river’s navigability and conserving
natural scenery.912 Land from the Waimarino block was vested in the Trust as an
endowment to fund its activities.) In 1974, both the domain status of Sections 13 and 14,
and the Trust vesting, were cancelled.913 The land was set aside for railway purposes. A
residential development – Sunshine Railway Settlement – was built upon an area of just
over 10 hectares that comprised Parts Section 13 and 14. This property was sold in June
1989 to Stone Key Investments Limited.914
14.7 Conclusion
When land taken for public works is no longer required, former owners possess a statutory
right of repurchase under the offer back provisions of the Public Works Act 1981. These
911
CT 217/87, Wellington Land District, LINZ.
Robyn Anderson, ‘Whanganui Iwi and the Crown 1880-1900’, a report commissioned for the Crown
Forestry Rental Trust, draft, March 1998, p 113.
913
CT 217/87, Wellington Land District, LINZ.
914
CT 34B/863, Wellington Land District, LINZ.
912
323
provisions appear to be somewhat inadequate in cases where land was formerly in Maori
ownership. As highlighted in the Ohakune scoria pit case study (Chapter 10), compliance
with the offer back provisions is difficult where land was held by a large number of owners.
In the Ohuta gravel pit case study (Chapter 11), the Ruapehu District Council failed to offer
the land back to all former owners and their successor. The Otukou metal pit and quarry
case study (Chapter 13) shows that decisions concerning surplus land are sometimes very
drawn out, a situation that is frustrating for former owners. Some claimants have stated that
they have encountered difficulties when requesting information on land disposals. In the
Turangi Township Report, the Tribunal has already noted that the offerback regime of the
1981 Act has a number of deficiencies with regard to land formerly held by Maori.
In cases where a right of repurchase does not exist or is not exercised, there are important
protection mechanisms that safeguard Maori interests during the disposal of Crown land.
The provision of landbanks ensures the availability of land for settlement purposes, while
another process provides protection for lands of cultural importance. It should be noted that
these protections were introduced after significant areas of Crown land had been disposed
of under the rationalisation policies that were introduced by the Labour Government.
324
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