The Waitangi Tribunal presented the report on Wellington and its environs, Te Whanganui a Tara me Ôna Takiwâ, to the claimants and their nearly 1000 supporters at Pipitea Marae on Saturday 17 May 2003.

In the report, the Tribunal found that the 1839 deed by which the New Zealand Company purported to have purchased the Port Nicholson block was invalid, conferring no rights on the Company or its settlers; that the 1844 process for gaining deeds of release of 67,000 acres from Mâori for settlement was seriously flawed; that the Crown failed to recognise the rights of iwi in Heretaunga (Hutt Valley) and forcibly evicted them to secure title to those lands; that the ‘one tenth’ of the acquired land agreed to be reserved for Mâori in the deeds was never fully honoured; that in 1847 Mâori lost 23 valuable urban ‘tenths’ of one acre each in the heart of the capital city, appropriated by the Crown for hospital, educational and religious endowment purposes; that the administration and the perpetual leasing regime imposed on the Wellington ‘tenths’ reserves effectively deprived Mâori of occupancy in perpetuity, and of adequate financial return; that the Crown acquired the town belt and other reserves without consent or payment; and that the 1848 Crown grant to the New Zealand Company deprived Mâori of a further 120,626 acres of land which they never sold or consented to surrender. This land was subsequently vested in the Crown on the company’s collapse. The Crown’s actions outlined above are only some of the Treaty breaches reported on.

The Tribunal found, “The Treaty breaches set out in this report combine to entitle the various claimants to substantial compensation. In considering the nature and scope of the remedies appropriate, given the many serious Treaty breaches by the Crown, regard should be had to the loss by various claimants of almost all their land in the Port Nicholson block. The Tribunal considers that a significant element of such compensation should be the return of Crown land in Wellington city and its environs.”

The Treaty breaches identified affected Te Atiawa, Ngâti Toa, Ngâti Tama, Ngâti Rangatahi, Taranaki, and Ngâti Ruanui. The Tribunal recommended that representatives of these groups enter negotiations with the Crown to settle these Treaty grievances.

The report covers the complex process of alienation of Mâori land in favour of settlers. Article 2 of the Treaty of Waitangi confirms and guarantees to Mâori the full, exclusive, and undisturbed possession of all their lands and other properties for so long as it is their wish and desire to retain them. Although the1844 deeds of release assured Mâori that they would receive a full one tenth of the land purchased, and that they would retain their pâ, cultivations and reserves, subsequent actions of the Crown assisted in negating these guarantees. As a result, the Crown failed to reserve adequate land for the Port Nicholson Mâori.

In fact, the Tribunal found the deeds of release of valuable cultivations were gained through Mâori being “given the non-negotiable option of accepting the proffered compensation or seeing the land go to the New Zealand Company without their receiving any payment.” As thousands of settlers began to arrive and take up their allotments, the Crown became increasingly anxious to facilitate the removal of Mâori from sufficient of their land to accommodate the newcomers.

In order to gain secure title to land in Heretaunga (Hutt Valley) where many company sections were located, the Crown had first to deal with Mâori claims to rights there. Ngâti Rangatahi were seasonal occupiers, and Ngâti Tama had moved there in the early 1840s as a result of settler intrusion on their land at Kaiwharawhara. They were both in residence under the mana of Ngâti Toa of Porirua on land claimed by the New Zealand Company and its settlers. Crown officials considered iwi had no occupation rights there, and they were pressured into leaving the valley by Governor Grey in 1846, Ngâti Rangatahi leaving only under threat of attack by Crown forces. The unjustified destruction and desecration of marae and other property carried out by military forces was followed by armed conflict in the valley, with the war subsequently moving north to Porirua.

The Tribunal found that the Crown failed to recognise or protect the interests of Ngâti Rangatahi and Ngâti Tama, who were forced from their land, and who received little or no compensation. In addition, the Tribunal found that the Crown failed adequately to recognise Ngâti Toa’s interests in the Port Nicholson block by failing to allocate them any Wellington tenths reserves.

In 1847 a series of new reserves were assigned for Mâori who were required to relinquish their cultivations. The Tribunal found: “Exchanging a greater quantity of inferior land in more remote localities for the best land in convenient places does not, on its face, constitute a fair exchange……Save for a few exceptional cases, no effort was made by the Crown or its agents to persuade, whether by financial or other inducement, the settlers to give up Mâori cultivations, or to remove to inferior and more remote land.”

The so-called ‘McCleverty exchanges’ came almost exclusively from three sources: the town belt, tenths reserves converted to specific hapû reserves and unsurveyed ‘waste’ land – all land Mâori already rightly owned. The bulk of the McCleverty reserves were later either sold or taken for public works.

Furthermore, in 1848 a Crown grant was issued to the New Zealand Company covering not just the 67,000 acres in the deeds of release, but the whole of the Port Nicholson block, said to contain around 209,000 acres. Mâori retained only some 20,000 acres of reserves. The Crown grant deprived Mâori of over 120,000 acres which they had never sold or consented to give up, and the Tribunal found this to be in breach of their Treaty rights.

The tenths reserves were administered by government officials on behalf of the Wellington Mâori who were the beneficial owners of those reserves. The appropriation by the Crown of 23 acres in the heart of the developing city of Wellington in 1851 and 1853 were found to be in breach of Treaty principles, as there was no consent, and no compensation until 1877, and even that was inadequate. The claimants were obviously prejudiced by this.

For most of the twentieth century, the tenths reserves were placed under perpetually-renewable leases for 21-year terms, a system which not only alienated Mâori beneficial owners from the land, but provided below-market rents. While rents could rise to reflect increased land values only once every 21 years, rates were reviewed and raised every 5-6 years. Other alienating practices adopted included acquisition of uneconomic shares by the Mâori Trustee without consultation, and free-holding of reserves to facilitate their sale. These legislative moves were found by the Tribunal to be in breach of the Treaty.

The effects of these measures are self-evident: “Only 42 rural tenths reserves were set aside in the Port Nicholson block. Seventy-one rural tenths of 100 acres each should have been allocated. One hundred and thirty five years later, only 124 acres – scarcely more than one rural tenth – of those original rural tenths remained, and it was next door to a rubbish dump”.

The Tribunal strongly felt that retaining a land-base for Mâori is “a means of preserving racial identity, of sustaining Mâori mana and self respect, contributing towards a sense of community by uniting large numbers of Mâori people in a continuing common enterprise, and enabling them to identify as an integral part of New Zealand society and economy”. They recommend that the return of Crown land to Wellington Mâori should be a significant element of compensation.

Other matters discussed in the report include Crown taking of land for public reserves, including the town belt and Matiu (Somes Island), without the consent of, or payment to, Mâori; the creation of reserves in Palmerston North for some Wellington Mâori, to replace tenths reserves in Wellington which had been sold by the Crown; the taking of Mâori reserved land for public works purposes; and issues relating to the management of Wellington harbour, including the reclamation of much of the harbour foreshore. Copies of the report can be ordered from Legislation Direct (Phone (04) 496 4955) or Bennetts Government Bookshop (Phone (04) 499 3433) from Monday, available Friday 23 May.

Media information – Status of Wellington Town Belt

The town belt was laid out in the original plans of Wellington city, from land included in the Port Nicholson deed of purchase that the Waitangi Tribunal has found to be invalid. It encircled the 1100 urban sections, separating the township from the rural sections. Although it was never validly purchased, in 1841 Governor Hobson proclaimed that the land was “reserved by the Crown for public purposes”. In breach of the Treaty of Waitangi, 1562 acres were acquired without consent, consultation or payment.

In 1847 McCleverty granted 219 acres of this land back to Mâori to replace cultivations that had been guaranteed to them in the original Port Nicholson deed, but which they were required to vacate in favour of settlers whose sections encroached on these reserves. Although the New Zealand Company protested to this reduction, there was no other suitable cultivatable land in the vicinity for these “exchanges”.

Other reductions to the town belt were for Wellington Hospital and the Governor-General’s present residence.

Title was granted to the superintendent of Wellington in 1861, and in 1873, the remaining 1061 acres of the town belt were granted to the Wellington City Council who continue to manage it. As the City Council is a local authority, this land is now deemed to be in private ownership. However, this does not negate the right of Mâori to compensation.

Other reserves created by the New Zealand Company and assumed by the Crown include Matiu and Makaro (Somes and Ward Islands), Points Jerningham, Halswell, Waddell and Dorset, and Palmer Head. Pencarrow and Baring Heads were claimed by the Crown in 1841, but were assigned to Petone Mâori as part of the Parangarau block by McCleverty in 1847.

Again, in breach of article 2 of the Treaty, which confirms and guarantees to Mâori the full, exclusive, and undisturbed possession of all their lands and other properties for so long as it is their wish and desire to retain them, these lands were taken without consent, consultation or payment.

The Tribunal has recommended that a significant element of compensation should be the return of Crown land in Wellington city and its environs to compensate for these and other Treaty breaches.

Media information - Mâori Interests in Wellington Harbour

Before the New Zealand Company began subdividing the region of Wellington into sections, all Mâori pâ in the harbour region had waterfront access. This was important as it provided access to fisheries in the harbour, and to the foreshore as a source of kaimoana (seafood), tauranga waka (moorage sites) and trading sites. By 1848 as the city developed, all but Petone, Waiwhetû and Te Aro were separated from the foreshore by a public road. Now, the foreshore has been dramatically changed by reclamation covering over 355 hectares, or roughly 4 percent of the original area of the harbour.

The legal issues relating to the ownership of the seabed and foreshore, and whether they can be considered customary land, were the subject of a High Court decision in 2001 (commonly referred to as the Malborough Sounds case). This case has been appealed to the Court of Appeal. Although it is inappropriate for the Tribunal to comment on these issues, leave is granted for the claimants to apply for a further hearing relating to ownership of the foreshore and seabed following the final court decision.

Reclamation caused the foreshore to disappear, and regardless of the legal question of ownership, Mâori had an interest in the foreshore, which should have been acknowledged. The Tribunal found, “There can be no more drastic action than to cause so valuable a part of the natural environment to cease to exist altogether, yet the destruction of the foreshore by reclamation at Te Whanganui a Tara took place without any consultation with the Mâori who had been kaitiaki of that foreshore”.

“Where reclamation had the effect of destroying shellfish beds, the Crown was obliged to obtain Mâori consent and to compensate Mâori for such destruction. The Crown’s kawanatanga rights under article 1 of the Treaty give it the right to undertake public works for the benefit of the general community, but this does not allow the Crown to disregard the specific interests of Mâori and their rights under article 2”.

“In assessing the degree of prejudice to Mâori as a consequence of the foregoing, regard should be had to the beneficial effect of the various reclamations on the growth and prosperity of the city of Wellington. Regard should also be had to the fact that the ability of Wellington Mâori to participate in such growth and prosperity was substantially reduced by the loss of many of their valuable urban tenths reserves” through government acquisitions in 1847.

“We consider that no further Treaty breach has been established in relation to the failure to consult with Mâori about the sale and lease of land once it had be reclaimed. However, we would add that, had the Crown been conscious of its Treaty duty, it would have been appropriate for it to have vested a portion of the reclaimed land in the affected Mâori”.

Over time, Wellington Harbour itself was seriously polluted, which had an adverse effect on fishing and other resources. “The Tribunal finds that the failure of the Crown to make legislative provision for the involvement of Wellington Mâori in the management of Wellington Harbour and its resources until very recently is in breach of its Treaty obligation”.

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