On Saturday August 9th Te Atiawa Iwi Authority and the Crown led by Chris Finlayson have arranged to finalise the Treaty settlement process for Te Atiawa Iwi. It is a process that has been fraught with issues for many years. Irrespective of the dominant view that it has been ‘troublemakers’ within the hapu of Te Atiawa that have created the issues, the fact is that the settlement process from the outset has worked against the interests of our whanau, hapu and iwi.
It is important to acknowledge the incredibly difficult job that Iwi negotiators over the years have faced however there is no doubt that the current settlement on the table is a result of ongoing colonial manipulation on the part of the Crown. The settlement is one of many that is being rushed through parliament before the elections, even at the cost of the wellbeing of many of our whanau and hapu of Te Atiawa. We have seen ongoing debate that has highlighted that this process has split our people. We see attacks on whanau and hapu, we see hapu being totally marginalised in the process, we see the Crown and the NP Council at odds with each other over key lease lands and our people are being set up against each other. As with other iwi, the position taken by our tupuna ‘riro whenua atu, hoki whenua mai’ has been difficult to achieve in a context where the Crown control the resources. We, as Iwi, have been in negotiation with the same institution that illegally seized our lands and who now take the position of determining what they will return.
There are many analogies for this type of relationship. One is that after stealing the land, it is now the thief that says when or if it will be returned to its rightful owners. Then the thief says how much land will be returned, and to add salt to the wound the thief then tells us that they gave some of the stolen land to another mate (the council) who now says its their land and you can’t have it back – except of course if you buy it back – but even then the thieves mate has already given some to their mates…
Get the picture… yes exactly, the Crown has given stolen lands to the council and some of that land has already been made freehold, and guess what, the freehold owners are their friends, relations and some are even ex-council workers. Go figure…. And how do we know that. Well our whanau have lived on lease lands in Waitara for nearly 50 years. My father, of Ngati Rahiri, Te Atiawa worked for years as a Freezing worker and paid lease to live on his own land. And suddenly the section that we have lived next door to for all that time is now freehold… and who owns it… and ex-council worker. So how does that happen in a context where the Crown and Council are telling the Iwi we can not have those lands back. And then, add another layer to it, the Council, seeing the potential for the leased lands to be returned to the Iwi decide to increase the leases by exorbitant amounts increasing tension even more for both iwi and lease holders. These are lands that the Council were given freely by the Crown, who have made clearly millions from the leases over many many years and who now have hiked up the prices during a Treaty Settlement process. There must be some very loud ‘ching ching’ and $$$$ signs echoing around the NP City Council whenever the topic of stolen lease lands are raised. This is all appalling. This is insulting not only for current and future generations but of the memory of our tupuna.
Another way to see these relationships is in the form of domestic violence. The taskforce on Whanau violence indicated some years ago that violence perpetuated by the Crown upon whanau is a form of domestic violence. The Crown partner continues to be abusive. Throughout the colonial process the crown imposed violence upon our people. The Crown – Iwi relationship operates as an abusive relationship. The Crown imposes its will continually upon our people irrespective of the appearance that they are negotiating in a fair or just manner. The Crown has since colonisation imposed its processes and defined how we as Maori, as whanau, hapu and iwi will be viewed within Aotearoa. In contemporary negotiations the Crown imposed the construction of the ‘largest natural grouping’ which it did through the Fiscal Envelope process. That alone has created significant issues for our people. Te Tiriti o Waitangi refers to hapu, and yet the Crown processes have consistently denied many hapu their voice or the return of their own lands. The privileging of the ‘largest natural grouping’ has had a significant impact on the Te Atiawa process as we can see by the marginalisation of three hapu within the Iwi. This is unacceptable, and it should not be tolerated by any of our people. Our whanau and hapu are the foundation for our iwi. Without them we do not exist as an iwi. Te Atiawa iwi is a confederation of our hapu. Our whakapapa and whanaungatanga determine our relationships and our rights as kaitiaki of our lands. The Crown definition of the ‘largest natural grouping’ does not reflect our tikanga.
The issue of the Pekapeka Block and its return is the essence of ‘riro whenua atu, hoki whenua mai’. That Block, of all blocks should have been the first to be returned, and we should not as hapu or iwi be forced to purchase back that Block, nor should we be forced to adhere to the manipulative processes that the Council have imposed illegally on lands that are not and were never theirs. We must also in the return of that Block maintain the integrity and manaaki inherent within our tikanga and care for those whanau who live on our lands. In the same way that our tupuna would expect us to.
We do not have to buy in to Crown imposed processes. If the Crown is truly apologetic and is truly seeking to correct fundamental injustices in Taranaki then the return of those lands must be done and done now, and done with no cost to the iwi. We should not buy in to the idea that the Crown can not afford to do that. There is currently more that $1.5 billion annually put into research that deals primarily with Crown and Pakeha defined research areas, so the argument that the Crown can not ‘find’ an additional $23million or more to buy back Te Atiawa lands (that they gave freely to the local council) has no substance. Even doing that the Crown is still getting off lightly in terms of the oppression and abuse that has been imposed on our people, both in the wars over Waitara lands and on successive generations that have lived our lives landless and denied our reo and cultural knowledge through the development of mono-cultural education systems in Taranaki. The list of failure of the Crown to actually give meaning to their apologies or to provide meaningful and just redress could go on and on.
The advocacy of our people for Te Tiriti o Waitangi was to protect our people, our whenua, moana, awa, our taonga. It was a protection mechanism that affirmed our rangatiratanga and provided the ability for the Crown to rule over its own people through the process of kawanatanga. Our tupuna knew that. Wiremu Kingi knew that. it was Wiremu Kingi in 1859 who in response to the Crown manipulation of ‘sales’ in Waitara
“They say that to Teira only belongs that piece of land. No, it belongs to us all: to the orphan and to the widow, belongs that piece of land.”
As a signatory to Te Tiriti o Waitangi it was Wiremu Kingi who wrote numerous times in 1859 to the Governor and made it clear that Waitara was not for sale and would not be relinquished.
“E kore au e whakaae kia hokona a Waitara… kei roto a Waitara i te kapu o tōku ringa, kore mō te tuku. Kore, kore, kore rawa mō te tuku
I will not permit the sale of Waitara … Waitara is in my hands, I will not give it up; I will not, I will not, I will not.”
“I will not agree to our bedroom being sold (I mean waitara here), for this bed belongs to the whole of us;and do not you be in haste to give the money…If you give the money secretly, you will get no land for it. You may insist,but I will neVer agree to it…it is an old word;and now I have no neW proposal to make, either as regards selling or anything else. All I have to say to you, 0 Governor, is that none of this land will be given to you, never, never, not till I die. I have heard it said that I am to be imprisoned because of this land. I am very sad because of this word. Why is it? You should remember that the Maories and Pakehas are living quietly upon their pieces of land, and therefore do not you disturb them•…”
What is clear is that the upcoming signing does not provide justice for Te Atiawa. It does not provide justice for whanau, hapu or iwi. It reproduces the same abuses by the Crown that we have seen in the past, albeit in a new form of insult and injury. The negotiations guidelines for the settlement process states, amongst other points, that Te Atiawa and the Crown enter into negotiations acknowledging
“the Waitara purchase and the wars constituted an injustice and were therefore in breach of the principles of the Treaty of Waitangi.
the confiscation of land, as it occurred in Taranaki, also constituted an injustice and therefore was in breach of the principles of the Treaty of Waitangi.”
The negotations guidelines also noted that the parties agree
“To observe high standards of integrity, honesty, and sincerity, including fair dealing and fostering a negotiating environment of mutual trust and confidence.” The guidelines also note an inclusiveness and empowering of Te Atiawa Tikanga.
It is difficult to see how these guidelines have been fulfilled by the Crown when looking at the Deed of Settlement and in the approach of the Crown and the Council in regards to the Waitara lease lands and in particular the Pekapeka Block. As a descendant of Te Atiawa, as a member of Ngati Rahiri hapu, who my father was committed to for many years, as a whanaunga of all of the hapu of Te Atiawa, I can not support either the content or the process that is being referred to as the Treaty Settlement process for our people. It is fundamentally unjust, it is oppressive and it has been divisive and has created another level of trauma and pain for our people in this generation that adds to the historical trauma that was experienced by our tupuna and has been carried by generations of Te Atiawa descendants since the invasion of our lands.
The vote that has been taken to affirm this settlement has no validity. The outcome of the vote is recorded by TAIA as follows:
“You will be aware that the ratification vote for Te Atiawa’s Deed of Settlement closed on Thursday 17 July 2014. Following the close of voting, a process for verifying special votes was conducted and the independent Returning Officer (Electionz.com) issued the final results on 24 July 2014, which were then provided to the Crown for consideration.
We have not been able to release the final results until Minister Finlayson and Minister Sharples provided confirmation of the ratification results. We have now received this confirmation from both Ministers allowing us to proceed to the signing of a Deed of Settlement with the Crown on Saturday 9 August 2014.
The final voting results from the Independent Returning Officer are that 40.22% of the adult members of Te Atiawa participated in the vote and 77.08% of those votes supported the Deed of Settlement.
The signing ceremony will be held on Saturday 9 August 2014 at Rangiatea, 131 South Road, New Plymouth. We ask that our Te Atiawa whanau arrive at 9.00am to prepare for a 10.00am powhiri for the Crown. Further details on the signing ceremony will be made available shortly.”
The numbers for the vote are:
Total Eligible adult voters: 5296
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What these numbers tell us is that less that 40.22% or 2130, of the defined number of eligible voters actually cast a vote. As such the yes vote only represents only 30% of the total voters. Additionally the total Te Atiawa population in the latest census is recorded as 23,091. As such we have 1631 yes voted being presented as adequate and acceptable to make a deal on behalf of 23,091 Te Atiawa people. That is not acceptable in anyone’s terms, and it reflects the inability of this Crown colonial ‘democratic’ ‘one vote per registered adult’ process to provide ways of ensuring just outcomes for our people.
Our whanau and hapu are those that must be the decision makers. We need to return to those fundamental processes. We can not allow the needs of some hapu to be denied or marginalised and allow the Crown to force them to be a part of something that does not provide for healing and justice for our people. The marginalisation of our cousins of Ngati Tawhirikura, Otaraua and Manukorihi is not acceptable to our whanau and we call on Te Atiawa to find our own way through these issues. For that to happen the signing must be put on hold and the baselines for what must be returned be revisited. If we move forward with a flawed deal then we place the issue of resolving that on the shoulders of our tamariki and mokopuna. Our tupuna did not do that to this generation. We do not have the right to do that to future generations.
Sections from the Taranaki Report related to Waitara and Pekapeka.
No sooner had some peace been made to end the three years of Puketapu fighting in 1857 than one of the combatants, Ihaia Te Kirikumara, offered to sell lands at Waitara and at Turangi, further to the north. His relation Pokikake Te Teira did the same, but owing to the opposition of Wiremu Kingi and even of Te Teira’s father, Te Raru, those offers were not pursued at that time.
Responsibility for the Waitara problem (that is, the settlers’ anxiety to ‘recover’ that which Kingi would retain) now rested with Colonel Thomas Gore Browne, who had replaced Grey as Governor in 1855. Browne lacked Grey’s knowledge of Maori language and culture and was more reliant on the advice of his officials. His resolve to secure Taranaki lands for settlement was no different from Grey’s policy, but his decision to challenge Kingi and to push the purchasing into Waitara was probably due more to bad advice than to his own assessment.
Settler opinion was undoubtedly influential. In their eyes, Kingi was the leader of a land league and was not only intransigent but acting unlawfully. Because deaths had resulted from the Puketapu feuding between sellers and non-sellers, by implication he was also an accessory to murder.
Initially, the Governor was cautious. In 1856, he appointed a board to inquire and report, inter alia, on the nature of customary tenure and the rights of individuals in relation to the group. Although today’s scholars would refine some of the board’s conclusions, its main advice on the interplay between the individual and the group was correct in substance, if not detail, and the real concern is that the Governor did not heed it.
In the board’s view, it was the ‘tribe’ that had the only authority to dispose of land, and while the individual had certain possessory rights, ‘there is no such thing as an individual claim, clear and independent of the tribal right’. The Governor’s alternative policy of favouring individual sellers against tribal representatives went against this finding and led to war.
The Governor’s first visit to Taranaki on 8 March 1859 was eventually to bring this issue to a head. Speaking to a mixed audience of settlers and Maori at New Plymouth, he announced a policy but then, within a few days and to Maori confusion, changed it. He initially announced that:
- (a) any person committing violence or outrage within ‘European boundaries’ would be dealt with under the criminal law; and
- (b) he would not buy land with a disputed title and ‘would buy no man’s land without his consent’; but
- (c) he would allow no one to interfere in the sale of land, ‘unless he owned a part of it’.
Because of later events, it is the second item, that the Governor would not buy land that was in dispute, that has most to be remembered. Wiremu Kingi was later to remind the Governor of this undertaking when he proceeded to buy the Pekapeka block while a dispute was unresolved.
The reference to ‘European boundaries’ in the first item was also significant. It needs to be clear that, at the time, both Maori and the Government thought in these terms; that is, that some land was European land and some land was Maori land. Even in Britain, matters were seen that way, and by section 71 of the New Zealand Constitution Act 1852 (UK), the Governor was authorised to declare Maori districts where Maori law would prevail. As shall be seen, this acceptance of distinctive areas was to become significant during the war. At the height of hostilities, and in demonstration of their ‘right’, Maori were cautious to ensure that their own attacks were conducted on Maori land, where soldiers were trespassers, and to take careful note when soldiers erected stockades or effected manoeuvres on other than the ‘Europeans’ land’. In Maori law, where aukati, or demarcation lines, were usual devices for the management of war, armed trespass across the line was an act of aggression that justified retaliation.
Soon after the Governor had spoken, Te Teira, a co-resident with Kingi on the Pekapeka block at Waitara, offered the block for sale. According to the translation in the Taranaki Herald , Te Teira said that:
he was anxious to sell land belonging to him, that he had heard with satisfaction the declaration of the Governor referring to individual claims, and the assurance of protection that would be afforded by his Excellency. He minutely defined the boundaries of his claim, repeated that he was anxious to sell, and that he was the owner of the land he offered for sale. He then repeatedly asked if the Governor would buy this land. Mr McLean on behalf of his Excellency replied that he would. Te Teira then placed a parawai (bordered mat), at the Governor’s feet, which his Excellency accepted. This ceremony, according to Native custom, virtually places Teira’s land at Waitara in the hands of the Governor.
It appears to us that Te Teira and the reporter of this conversation were not of one mind. There was no part that Te Teira could call his own, so the description he gave could not have been of his own land. It was more likely a description of the whole block (or larger, in the usual Maori way), in which he was one of many with an unpartitioned interest. We think it is actually doubtful that Te Teira intended to offer the whole block, but consider he was speaking only for his undivided interest. Three days later, he sent a letter to the Governor suggesting he was selling an undefined interest in the block and that it was not necessarily large. He wrote, with typical Maori imagery where the whole speaks for the part:
Friend, it is true I have given up Waitara to you; you were pleased with my words, I was pleased with your words. It is a piece of land belonging to Retimana and myself, if you are disposed to buy it never mind if it is only sufficient for three or four tents to stand upon, let your authority settle on it . . .
Later, the matter became distorted into an assumption that Te Teira and his followers were the owners of the whole block. At the time of the meeting, however, the Governor consulted his advisers and announced he would accept Te Teira’s offer, provided that Te Teira could prove his title. Kingi was present and recorded a brief objection:
I will say only a few words and then we will depart . . . Listen, Governor. Notwithstanding Teira’s offer I will not permit the sale of Waitara to the Pakeha. Waitara is in my hands, I will not give it up . . .
Kingi left, in the Governor’s words, ‘with some want of courtesy to myself’.
Te Teira’s motives in selling are not clear. It has been conjectured that he sold from personal animosity. Archdeacon Williams, Archdeacon Hadfield, and E Shortland each considered that Kingi had sheltered a girl whom Te Teira had abducted to marry to a relative and that Te Teira had vowed revenge by selling the land of the hapu. J Cowan recorded Maori opinions that Te Teira sought revenge for his relative Ihaia Te Kirikumara, who had earlier endeavoured to sell Waitara and who had other unrequited grievances. Te Teira had returned to Waitara as an insignificant member of Kingi’s heke in 1848. He supported Te Kirikumara in the Puketapu feuds. Domestic incidents may obscure deeper frustrations, however, and a hidden ambition to wrest the leadership from Kingi by aligning with Pakeha cannot be discounted.
Three days after the meeting with the Governor, a deputation of settlers persuaded the Governor to change his mind about buying disputed land and to prefer Te Teira on the basis that the individual right to sell was paramount. At heart were questions of representation and the relationship between the individual and the group, but if the Governor had begun well in having those issues impartially examined by the Native Affairs Board, he was now about to discard the board’s opinion. The Governor was urged to individualise Maori titles generally in order to destroy the tribal system and break the land league that Kingi allegedly supported. Earlier, Taranaki and other settlers had promoted the Native Territorial Rights Bill to individualise Maori land. This had been enacted in 1858 but was later disallowed by the Imperial Government, and now the settlers were proposing the policy once more. The Governor was convinced. He considered ‘the surest remedy for existing evils was to prevail upon the natives to individualise their claims and obtain crown grants for their lands’, directed the survey of ‘Teira’s piece’ as though it were legitimately severable, and ordered negotiations for the identification of each person’s part. This was now a radical departure from the previous practice of total block buying. (b) As matters turned out, the whole of the Pekapeka block was to be surveyed and acquired.
Both in terms of Maori law and in terms of providing an economic unit for European settlement, ‘Teira’s piece’ was a figment of the imagination. It was impossible to cut it out. The land was jointly occupied by Te Teira, Kingi, and others. Kingi had separate pa on the land surrounded by numerous kainga. Near to the pa was a patchwork pattern of cultivations, in which, in the usual Maori way, families held several small plots throughout a horticultural mosaic, none of which constituted a sizeable, sellable unit. Kingi’s ‘pieces’ and Te Teira’s ‘pieces’ were intertwined. Beyond the cultivations, all was held in common. So strange was this notion of individual pieces that there was no Maori word for it. Officials used ‘pihi’, a transliteration of ‘pieces’.
McLean did not return to Taranaki before the outbreak of the Waitara war, more than a year later. Instead, he went to Queen Charlotte Sound, Nelson, Wellington, and the Kapiti coast to have the Taranaki Maori there sign a deed. It was now convenient to recognise the absentees in the expectation that their signatures to a deed would ‘very much weaken the opposition of Wm King and others’ to the sale. Once more, it was an attempt to divide and rule but no one signed the deed that was presented. Thereafter, McLean still did not return to Taranaki; he went to Hawke’s Bay, where he sought to facilitate the Pekapeka purchase by correspondence. On 18 March, he wrote to Kingi, Wiremu Ngawaka Patukakariki, and ‘nga tangata katoa o Waitara’, asking them to point out:
your pieces of land which lie in the portion given up by Te Teira to the Governor. You are aware that with each individual lies the arrangement as regards his own piece; in like manner Te Teira has the arrangement of his piece.
With McLean absent, it was left to Robert Parris, the Crown purchase agent in Taranaki, to attempt to complete the Waitara purchase. Te Teira complained that Kingi and the others would not agree to mark out ‘their own pieces of land without our line’. Parris was instructed to reassure him that:
The Governor consents to your word, that is, as regards your own individual piece, but be careful that your boundary does not encroach upon the land of any person who objects to sell . . . consent will be given to the purchase of land that belongs to yourself.
Another letter was addressed to Kingi:
The Governor has consented to his [Te Teira’s] word, that is, as regards his own individual piece, not that which belongs to other persons. The governor’s rule is, for each man to have the word (or say) as regards his own land; that of a man with no claim will not be listened to.
Te Teira and Kingi replied to these letters. Te Teira said:
The land that I and Richmond consented for you to have, belongs to myself, Richmond, Hemi Watakingi, Paranihi, Rawiri, my father Thomas, and Nopera. It belongs to all of us . . . the seven consent to our offering it to you . . . I am not rashly interfering with other people’s land, the land is ours.
Te Teira urged the Governor to settle for the land at once.
Kingi, aware that Te Teira had asked for payment, wrote a few days later:
I will not agree to our bedroom being sold (I mean Waitara here), for this bed belongs to all of us; and do not you be in haste to give the money. If you give the money secretly, you will get no land for it. You may insist, but I will never agree to it . . . All I have to say to you, O Governor, is that none of this land will be given to you, never, never, till I die. I have heard it is said that I am to be imprisoned because of this land. I am very sad because of this word. Why is it? You should remember that the Maoris and Pakehas are living quietly upon their pieces of land, and therefore do not you disturb them.
The correspondence went to the core of the Waitara problem. The Governor would break tribal opposition to land sales by promoting the right of individuals or individual whanau to sell their ‘piece’ of land in defiance of rangatira responsible for the collective interests of all. Maori tenure recognised individual whanau rights of occupation and use centred on kainga, cultivations, and resource sites, but any admission of strangers that might prejudice the integrity of the group, as might occur on the sale of part, required communal sanction at a hapu or even wider level. This ‘tribal right’, as it was then called, was known at the time and had been spelled out in the 1856 report of the Board of Native Affairs.
The different views of Kingi and Te Teira became more evident as the crisis grew, which developed because the Governor forced the issue. Reporting to the Colonial Office after the March meeting at New Plymouth, he wrote:
progress has been made in ascertaining Teira’s right to dispose of the land (of which there seems to be little doubt), and, if proved, the purchase will be completed. Should this be the case it will probably lead to the acquisition of all the land south of the Waitara river, which is essentially necessary for the consolidation of the province, as well as for the use of the settlers.
It is also most important to vindicate our right to purchase from those who have both the right and the desire to sell.
. . . I have, however, little fear that William King will venture to resort to violence to maintain his assumed right; but I have made every preparation to enforce obedience should he presume to do so.
By so gravely misinterpreting Maori law and Kingi’s determination to uphold it, the Governor was expediting the crisis he would avert. Throughout, however, he was misadvised and misinformed. The Crown purchase agent, for example, purveyed the view that Kingi had no possessory interest in the land, omitting to advise the Governor that Kingi and some 200 of his followers lived there. It is clear that the agent knew of this, because he had earlier claimed that Kingi had returned to live at Waitara only with Te Teira’s permission. This opinion was spuriously based on advice that, on his return from Cook Strait, Kingi had waited on Te Teira before occupying the land. In fact, however, Te Teira had accompanied Kingi. Kingi was returning to his father’s pa and cultivations and had no need to seek Te Teira’s permission to settle there. The point, however, is that the agent obviously knew of Kingi’s residence on the land, but he reported only that Kingi was simply dictating ‘authority over [the] land’. Accordingly, the Governor was to assume that the question was whether Kingi had the right to exercise a chiefly veto, when that was not the question because Kingi had an interest in possession.
Kingi refused to point out his ‘piece’. He could not have done otherwise. It is helpful to understand the attributes of rangatira to appreciate why this should be so, but it is not practicable to explain that immediately. Suffice it to say for the moment that the rangatira were not merely the leaders of the people – they were the people. They were inclined to use ‘I’ where others would use ‘the people’ or ‘we’. They owned everything and yet might claim nothing personally. They were entitled to be first and yet might put the least within the tribe ahead of themselves. They placed importance on honour and were keen to honour others but were most insistent on maintaining their own. As part of keeping honour, they would not demean themselves by doing less than was expected of them. As the name ‘rangatira’ implies, their primary function was to unite the people as one body. In our view, Wiremu Kingi was the epitome of a rangatira. It was not possible for him to countenance a division of the land or to accept that one person could take unilateral action to the detriment of any others.
Perhaps not appreciating the cultural sensitivities, the Crown agent complained that Kingi, ‘full of dogged obstinacy’ and ‘assuming the right to dictate authority over the land’, would not or could not point to his part. The Governor replied:
If Mr Parris is satisfied that Teira and the others who offer to sell have an indisputable title to the land, an advance should be made to them at once in part payment for it. They should, however, be told that the purchase will not be completed until Mr McLean reaches Taranaki.
The agent was thus authorised to make an ‘immediate advance’ once he was satisfied that the ‘parties offering it, have an indisputable title’. After waiting in vain for McLean to arrive, he eventually made a deposit on 29 November 1859, having duly announced it beforehand. The ceremony took place in New Plymouth, in the presence of both parties to the dispute and several settlers. The agent read out the boundaries of the block and promised that anyone who had land within it (‘his own strip of cultivation ground’) and did not want it to be sold would have it ‘distinctly marked off and his portion left to him’. It was added that, when the boundary lines had been cut and the price fixed, the remainder of the payment would be handed over.
The agent then recorded his questions to Kingi and Kingi’s responses:
Q: Does the land belong to Teira and party?
A: Yes, the land is theirs, but I will not let them sell it.
Q: Why will you oppose their selling that which is their own?
A: Because I do not wish for the land to be disturbed; and although they have floated it, I will not let them sell it.
Q: Shew me the justness or correctness of your opposition?
A: It is enough, Parris, their bellies are full with the sight of the money you have promised them, but don’t give it to them; if you do, I won’t let you have the land, but will take it and cultivate it myself.
Leaving aside the self-serving opportunities presented to the Crown agent, and assuming the faithfulness of his transcript and translations, in cultural terms the answers support Kingi’s position. As a rangatira, he excluded no one. He included Te Teira and his party and he claimed nothing for himself, because, as rangatira, all that he had was the people’s. It is instructive, then, to compare those responses with that which Kingi put in his own hand. His confusion and anger over the Governor’s perspective, which could only have been incomprehensible to him, and his expectation that the Governor would adhere to his original undertaking not to buy disputed land are evident in his letter to Archdeacon Hadfield:
Father, hearken, this is to ask you to explain to me the new system of the Governor; I heard it from Mr Parris when I went to town to close (stop payment of) the money of the Governor, the payment for Waitara, one hundred pounds . . . I said to that Pakeha, ‘Friend, keep away your money.’ That Pakeha said, ‘No’ . . . I also said to Mr Parris, disputed land the Governor does not desire. That Pakeha replied, ‘That was some time ago: now this is a new system of the Governor’s.’ From what I know (in my opinion) the Governor is seeking a quarrel for himself, for he has fully exhibited death. I therefore ask you to explain it to me, perhaps you have heard of the Governor’s new system . . . insisting upon disputed land and unwarrantably paying for disputed land, which has not been surveyed. Do you hearken. I will not give the ground. If the Governor strikes without cause, then death, then he will have no line of action (tikanga) for this is an old word, ‘man first, the land next.’ My word is therefore spoken, that you might distinctly hear what my offence is, and also the error of all the Pakehas, of Mr Parris, Mr Whitely, and the Governor.
He then emphasised, by metaphorical reference to the most needy of his hapu, the nature of communal ownership:
They say that to Teira only belongs that piece of land. No, it belongs to us all: to the orphan and to the widow, belongs that piece of land.
Feelings ran high as events moved to war. Even prominent settlers were expressing views that Kingi should be surrounded, deported, and, if he fired one shot, hanged. Te Teira insisted that the Governor ‘consummate the marriage’, writing on 19 January 1860: ‘We are sad because our marriage with this woman [is] being deferred so long.’ A week later, the Governor gave instructions that the survey proceed, that Kingi be informed ‘indirectly, but not officially’ when it would start, that the surveyors be protected by an adequate military force, and that the senior military officer be authorised to declare martial law. Once the survey was complete, the military were to keep possession of the land to prevent any occupation. The Native Minister instructed that, were the survey to be interrupted, the surveyors were to retire, the military were to occupy the land, and the survey was to then be completed under military protection. The Crown agent had discretion as to when to pay the balance purchase moneys.
The Crown agent kept Kingi informed, seeking again that he disclose the pieces in which he was interested. Kingi responded, ‘I will not consent to divide the land, because my Father’s dying words, and instructions were, to hold it.’
There is no evidence that Kingi wanted war. The evidence is rather that, while the Crown prepared for military operations, Kingi attempted to avert any fighting. On 20 February, three surveyors sought to survey the external boundaries of the block, but some 60 to 80 of Kingi’s people, unarmed and mainly women, refused to let the survey proceed. Colonel Murray then sent an ultimatum:
William King, it has given me much pain to hear from Mr Parris that the Government surveyors sent down to survey the land purchased from Te Teira were stopped by your people. This is rebellion against the Queen. I am most anxious that no harm should come to any Maoris caused by your conduct; but I must tell you plainly that the Governor has ordered me to take possession of the land with the soldiers, and I must obey him if you continue in opposition. As I wish to keep everything peaceable between the Europeans and the natives, I will wait till 4 o’clock to-morrow afternoon, for your answer, whether I am to go or not.
Friend Colonel Murray, salutation to you in the love of our Lord Jesus Christ . . . You say that we have been guilty of rebellion against the Queen, but we consider we have not, because the Governor has said he will not entertain offers of land which are disputed. The Governor has also said, that it is not right for one man to sell the land to the Europeans, but that all the people should consent. You are now disregarding the good law of the Governor, and adopting a bad law. This is my word to you. I have no desire for evil, but on the contrary, have great love for the Europeans and Maories. Listen; my love is this, you and Parris put a stop to your proceedings, that your love for the Europeans and the Maories may be true. I have heard that you are coming to Waitara with soldiers, and therefore I know that you are angry with me. Is this your love for me, to bring soldiers to Waitara? This is not love; it is anger. I do not wish for anger; all that I want is the land. All the Governors and the Europeans have heard my word, which is, that I will hold the land. That is all. Write to me. Peace be with you.
Colonel Murray then declared martial law. The Maori text of the proclamation read:
HE PANUITANGA. Na Te Kawana, Colonel Thomas Gore Browne, Tino Rangatira, aha, aha, na te Kawana o tenei Koroni o Niu Tireni tenei Panuitanga. Ko te mea, meake ka timata nga Hoia o Te Kuini ta ratou mahi ki nga Maori i Taranaki, e tutu ana, e whawhai ana ki to te Kuini mana – Na, ko ahau tenei ko Te Kawana, te panui te whakapuaki nui nei i tenei kupu, Ko te Ture whaw[h]ai kia puta inaianei ki Taranaki, hei Ture tuturu tae noa ki te wa ka panuitia te whakarerenga.
Of some interest is the use of ‘tino rangatira’ for ‘governor’, an awkward slip of the pen, because ‘tino rangatiratanga’ was precisely that which the Treaty of Waitangi had guaranteed to Maori.
The English translation of the operative clause was:
. . . Whereas Active Military operations are about to be undertaken by the Queen’s Force against Natives in the Province of Taranaki, in arms against Her Majesty’s Sovereign Authority, Now I, the Governor, do hereby PROCLAIM and DECLARE that MARTIAL LAW will be exercised throughout the said Province from publication hereof . . . until the relief of the said district from Martial Law by public Proclamation.
It should be noted that, as a matter of law, a formal proclamation of martial law is not necessary for the exercise of martial law powers. The exercise of power by the military may be undertaken whenever a state of war in fact exists. In this case, the proclamation has more the character of a notice of Crown attack. The statement that Maori were ‘in arms against Her Majesty’s Sovereign Authority’ is singularly unsupported by the evidence.
The Maori text, however, especially reads as a declaration of war. Maori were accustomed to settling the rules of war prior to battle, and ‘martial law’ had been rendered as ‘Ko te Ture whawhai kia puta inaianei ki Taranaki’, so that the document proclaimed ‘the law of fighting now introduced to Taranaki’. Indicative of Maori expectations was the consequential withdrawal of women and children from the disputed area.
A deed of purchase for the Pekapeka block was executed on 24 February with 20 Maori signatories of Te Teira’s family. It appears that, because no one else identified their ‘pieces’, Te Teira and the other signatories were accepted as owners of the whole. Boundaries were listed but no reserves were mentioned. A payment was made, the deed reciting the price as £600, and the Crown assumed that title had passed hands. Three years later, a new Governor was to admit the error, declaring the Government was unaware that Kingi was a part-owner and lived upon the land, but by then the war, which had lasted a year, had just been resumed. Te Teira was later to claim that full payment was never made and that reserves had been promised but not given.
The Governor arrived from Auckland with some 200 men of the 65th Regiment to reinforce the troops already there and the settler militia, who had been called to arms. He sought a conference with Kingi at New Plymouth and offered him safe conduct. Kingi proposed a council at Kaipakopako, midway between Waitara and New Plymouth, but the Governor regarded this as a subterfuge while Kingi waited for reinforcements and thus no meeting took place. The Governor, however, spoke to a gathering of Maori in New Plymouth, and in a mixture of blandishments and bluster, he told them that the Treaty of Waitangi secured their rights and property and assured them of the Queen’s disinterested love for them and of her power and many soldiers. He continued:
Yet William King presumes to say that he will not respect the Queen’s promise to her subjects. The Queen says each man shall keep his property if he pleases, and sell his property if he pleases. William King says, Teira shall not sell his property as he pleases. Is this wise? Is it right? . . . Teira’s title to the land is a good title, and William King and you all know that it is so . . . I desire peace and hate war. It is with William King to choose between peace and war. If he chooses war the blood will be required at his hands, and not at mine, and it is for him to consider the consequences while there is yet time.
The Governor then circulated a manifesto asserting the correctness of his position and that the mana of the land was not with Kingi, that Browne had accepted Te Teira’s title on the condition that it was undisputed, that an investigation showed it was ‘not disputed by anyone’, and that, since Te Teira had received payment, the land was now Crown land and Kingi would not be permitted to interfere with it.
On 4 March, the Governor instructed Colonel Gold, who was in command of the troops, to occupy the land. The approach was by sea. Some 400 men landed at Waitara the next day to fortify a position. The Governor then arrived with the blue jackets and marines to occupy what was described as ‘Kingi’s pa’ near the river mouth. On 6 March, it was discovered that Hapurona and others of Kingi’s supporters had thrown up a stockade. They were given 20 minutes to evacuate, which they did, and the pa was taken. That same day, Te Teira’s people destroyed Kingi’s pa at Kuhikuhi on the Pekapeka block.
The survey of the block began on 13 March and there was no resistance. On the night of 15 March, however, Kingi’s people constructed an L-shaped pa at Te Kohia, at the south-west extremity of the block, commanding the road access. On 16 March, they uprooted the surveyor’s boundary markers. On 17 March, Gold marched his troops to Te Kohia Pa and demanded that Kingi and his people surrender. When they refused to do so, the troops opened fire. The long war had begun. It was only 12 months after the new Governor had visited New Plymouth for the first time and promised those present that disputed lands would not be acquired.
Some 500 troops effected the artillery bombardment of Te Kohia Pa, but in the night the defenders quietly disappeared, without loss of life, and the next day all that was captured was an empty pa. If the Governor had anticipated a quick, decisive victory to bring Kingi to heel and to deter others from joining him, he had miscalculated. In Maori terms, however, the engagement had other significance. By Maori law, Kingi’s action was a necessary stratagem. Outnumbered and outgunned, he needed allies to fight from several places, but by Maori tikanga, support is not regularly available to an aggressor or to someone in the wrong. Te Kohia Pa, at the extremity of the disputed block and with a ready escape route by road and into the bush, had been hastily constructed with an apparent view to its abandonment if attacked. It appears to have had no other purpose than to evidence the Governor’s ‘wrong’.
Strangely, the Governor was sensitive to this tactic but still ordered an attack. This is apparent from an initial caution to Colonel Gold:
The first blood shed is a matter to which the natives attach great weight, and other tribes would join William King in a demand for utu if he could satisfy them that he had not been the first aggressor.
The aggressor having been identified in accordance with Kingi’s ploy, others were then free to launch reprisals under Maori utu laws. In a sense, they were obliged to. The popular rendition of utu as revenge is a misconception. Utu concerns the maintenance of balance as a mechanism for harmony and peace. This includes punishment for wrongdoing, which, to remove any connotation of revenge, was regularly exacted by other than those directly aggrieved and, for the same reason, was effected against other than the immediate offender. The strength of utu in personal affairs lay not in giving effect to it but in the certainty of it happening if a wrong were perpetrated. Accordingly, those who responded in this case were able to claim, in their terms, not only that they were justified in attacking but that they were obliged to do so, for by such means is tikanga, a proper line of action, maintained.
By this strategy, the war against Kingi became a Taranaki war and that was the more important factor in securing a measure of Maori success.
It is tempting to generalise matters to conclude that the war was a result of a desperate shortage of land for European settlement, as settlers were forever claiming. In reality, there was no shortage of land in Government hands in 1859. The most compelling evidence for saying so is the number of settlers the Government had to introduce later to fill the available territory. The Tarurutangi purchase, completed in January 1859, was made over for selection soon afterwards, and added some 14,000 acres for settlement. There was much other unoccupied Crown land nearer to New Plymouth. In comparison, the landholdings of many Maori hapu had been reduced to small reserves.
The causes of war are many. In this case, however, they point generally to the conclusion that the Governor started it. Most especially, he disregarded Maori law and authority. Contrary to Maori law, and in disregard for Maori authority, he presumed to buy from one group, though to do so would affect all and when, by their own collective process, not all affected had agreed. Maori law and authority with regard to the ownership and possession of land were Treaty guaranteed, and thus the Governor’s actions, which caused the war, were contrary to the Treaty.
The disregard of customary tenure, institutions, and process occurred despite the advice of the Board of Native Affairs. In that respect, the Governor’s actions were contrary not only to the Treaty but also to principles of law. That Maori ownership should be determined in accordance with Maori custom had been recognised by the New Zealand courts in a celebrated case of 1847, still quoted internationally in indigeneous rights fora, R v Symonds , with Chief Justice Martin presiding. It had been subsequently noted by the Board of Native Affairs. Commenting on the board’s review later, Martin noted:
Among the questions put by the Board to the witnesses was the following:
Has a native a strictly individual right to any particular portion of land, independent and clear of the tribal right over it?
This question was answered in the negative by 27 witnesses, including Mr Commissioner McLean; and by two only in the affirmative.
The determination of ownership in accordance with custom was further recognised in the Native Land Act 1862, even though that Act proceeded to change that tenure once ownership was ascertained. Previous Crown purchase policy had also recognised the same principle, though it was imperfectly observed. As for some recent statements of the same position, reference may be made to Justice Brennan in Mabo v Queensland No 2 :
Native title . . . has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.
It is clear that at all material times the Governor was obliged to negotiate for Maori land on the basis of the incidents ordinarily accruing to native title, but he did not do so, despite being informed of them.
The matter was confused when officials debated whether Kingi had ‘a chiefly power of veto’. In our view, this was the wrong question. First, Kingi had an interest in possession and his consent was required in that capacity. Secondly, as a rangatira, Kingi was expressing not a personal veto but the majority view. The question was whether individuals could presume to alienate land or whether a collective decision was required, as expressed through the rangatira, which would bind individual members.
In this way, the ‘rangatiratanga’ guaranteed by the Treaty was very much in issue, because the question was one not of ownership but of the customary process for managing land and its disposal. We have no doubt of the appropriate custom law principle. Any disposition that could introduce outsiders to the community, as in this case, affected everyone, and accordingly a community decision, as expressed through the rangatira, was required. If there were two rangatira, no disposition could be made if they did not agree.
Consequently, Te Teira was acting contrary to custom law principle in selling a part when not all were agreed. We suspect he was using the novelty of a sale to make a new law and to claim at the same time that he held more mana than Kingi, in that Kingi could not stop him. Kingi, on the other hand, was asserting the customary value, in our opinion, and was acting strictly in accordance with Maori law.
For his part, the Governor was also creating a new law. He presumed to deal with individuals, when, by English law and the doctrine of aboriginal title, he was obliged to follow Maori law when buying land, which required that he deal with the collective interests through their representatives.
In any event, the land having been acquired unlawfully, that is, without proper regard for Maori custom as required by English law, the Governor’s violent seizure of the block was also unlawful.
With regard to the war itself, it is further apparent that Wiremu Kingi was unjustly attacked. We have obtained the opinion of a senior constitutional lawyer in the matter, and we concur with his view that the opening of the war at Waitara was represented in an unlawful attack by the armed forces of the Crown on Maori not at that time in rebellion and that there was no justification for the Governor’s use of force. We note further his view that, at the time, the Governor and certain officers were liable for criminal and civil charges for their actions.
The evidence for the view that the Governor was willing to go to war to settle the question of authority but that Maori were keen for peace is compelling. What was not apparent to the Governor, however, was that, in opposing Maori authority in this way, he was in ‘rebellion’ against the Queen’s word in the Treaty.
Given the background described, when the war began in the north, southern hapu had little practical option but to join in. The Governor’s policy and intention were clear. They would not be able to retain their own homes or the status to which they were entitled under his policy and laws, and had thus to defend their own positions once Kingi was attacked.
Support for these conclusions is to be found in independent opinions. The 1927 royal commission to inquire into the confiscations was emphatic in its views that Te Teira could not have sold without Kingi’s consent, that Maori had no alternative but to fight in self-defence, and that:
When martial law was proclaimed in Taranaki . . . Wiremu Kingi and his people were not in rebellion against the Queen’s sovereignty; and when they were driven from the land, their pas destroyed, their houses set fire to, and their cultivations laid waste they were not rebels, and they had not committed any crime.
The commission placed weight on the views of William Pember Reeves, who considered that the Waitara affair ‘would always remain for New Zealand a blunder worse than a crime’. More particularly, the commission stated:
The Natives were treated as rebels and war declared against them before they had engaged in rebellion of any kind, and in the circumstances they had no alternative but to fight in their own self-defence. In their eyes the fight was not against the Queen’s sovereignty, but a struggle for house and home . . . The government was wrong in declaring war against the Natives for the purpose of establishing the supposed rights of the Crown under that purchase.