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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Native Land Court. [Paengaroa]

page 138

Native Land Court. [Paengaroa]

Maketu, 1st August, 1878.

Theophilus Heale,, Esq., Judge; and Hone Peeti, Assessor.


The map of this claim includes almost the whole of the great plain which stretches inland from Maketu, between the Kaituna and Kaikokopu rivers, also a comparatively narrow strip of land on the low hills beyond Pakotore, extending nearly to Te Hiapo. Two other claims have been surveyed within it for different claimants— Papanui and Pukaingataru.

All three claims were advertised for hearing before the Native Land Court at Tauranga in 1870, but the Pukaingataru claim only was fully heard. A judgment was pronounced upon it in favour of the Tapuika tribe, who appeared as opponents to the Ngatiwhakaue claimants on that occasion; but, as no order for certificate was made, or other final action taken by the Court, this judgment has now no effect, and the whole block might have been held to be included in the claim before the Court, and the judgment now given might have embraced all the land included in the survey, as the whole is affected by the same rights. But since the native claimants may well have supposed that Pukaingataru was not now in question, the Court considers that it will be more fair to the parties to exclude it from the present judgment, and to leave the title to it to be settled before a future Court, on any claim to it which may hereafter be sent in.

A small portion of the Rau-o-te-huia claim is also included within the boundaries shown on the map, and possibly a very small part of the Waipumuka may be; but the survey must be adjusted, and any portion of those claims, as shown in their respective surveys, is to be excluded from this, and exempted from any effect of this judgment, as well as Pukaingataru.

A considerable number of separate claims have been set up to the whole or to parts of the land under adjudication, but they all resolve themselves into three cases, namely—

1.That of the claimants, who are of the Tapuika tribe, and claim descent from Tia, one of the ancestors who, as very consistent traditions show, came originally from Hawaiki in the Arawa canoe. They depend almost entirely on their ancestral title and on continued possession, which they assert commenced from Tia and has never been completely interrupted for any considerable period.
2.That of the descendants of Tamatekapua and of Rahgitihi, including a great number of the tribes which of late years have page 139commonly been grouped together under the misleading name of "Te Arawa." These maintain that in the beginning this land was allotted to Tamatekapua, another of the Arawa immigrants, and not to Tia, whose lands lay further West; that the southern part of the block, which has been mentioned as being on the undulating country, has always remained, even to the present times, in the hands of some of the descendants of Rangitihi, and that the northern and larger part was always more or less successfully disputed by them with the Ngatiawa invaders.
3.That of the whole of the associated Arawa tribes, who assert that the Maketu lands were fully conquered and occupied for many generations by the various parties of the Ngatiawa, who at different times migrated from the eastward, and who are generally known by the name of "Ngatirangihouhiri," and more recently by the abbreviated name of "Ngaiterangi." These insist that the land was re-conquered by main force, and that therefore it belongs to the conquerors only.

Evidence has been given at vast length before the Court. Every witness, after a lengthened statement, has been cross-questioned, with wearisome iteration, by each of the opposing claimants, often on mythical and palpably fabulous stories of their remote ancestors; still more often, on the details of battles, way-layings, and slaughterings, minutely told off as payments for each other, but which could only throw light upon the case in so far as they afforded means of estimating the ultimate results of those protracted contests.

From all this immense and confused mass of traditions, the following salient facts have come out with a clearness which leaves their truth beyond reasonable doubt

It has been shown that for about five generations after the arrival of the Arawa canoe, the descendants of Tamatekapua, and probably also those of Tia, lived on the land in peace. It is quite unlikely that either of these set up any right to exclusive possession of the land, since the state of tribal jealousy and of constant war and animosity which has long been the normal condition of the New Zealanders, especially of those tribes which are closely connected by blood, does not seem then to have commenced.

It is clear that many of the traditions relied on to establish these ancient claims, are much more recent than the events they profess to record; there is much to show that here, as in our own and other countries, names have been given to places and objects, and then traditions have grown up professing to account for these names: thus the point at Maketu has been called Te Maraetanga o Te Ihu o Tamatekapua, and this has become the basis of a claim, and is cited as a proof that the land belonged to Tamatekapua; and because Lake Rotorua has been called "Rotorua nui a Kaha," therefore it is asserted that it must have belonged to Kaha, though it is usually believed that he and his son lived and died at Maketu.

Rangitihi, who was fifth in descent from Tamatekapua, is admitted page 140to have gone inland to Pakotore, and to have died there; and, after his time, his descendants seem all to have migrated to the Lakes, a few miles further.

About five generations later, it is admitted that Ruangutu occupied Maketu and the lands in question, of which it is naturally the key; and there is no doubt that Ruangutu was a descendant of Tapuika.

Since the judgment given by the Court at Tauranga in favour of the Tapuika tribe, the Ngatitunohopu, one of the hapus of the Ngatiwhakaue tribe, have set up a pedigree for Ruangutu's wife, Pare, by which they pretend to shew that she was descended from Tamatekapua, intending thereby to bring themselves in to a partition of any interest the Tapuika might derive from Tatahau, son of Ruangutu and Pare.

The Court has no difficulty in declaring its belief that this pedigree is spurious, and that Tatahau represented the Tapuika tribe only, his mother having been connected with Waitaha. Happily this is a point of little or no importance in the decision of the case, for it has been shown by witnesses of many different tribes, in other cases as well as in this, many of them most anxious to conceal or extenuate the fact, that the conquest by the Ngatirangihouhiri, which commenced in Tatahau's time, his death and that of many of his family having been its first stage, was complete over the open lands, from Whakatane to the North of Tauranga, and that their "mana" remained firmly established over the whole of these lands for many generations.

The various tribes descended from the Arawa immigrants especially those from Rangitihi, who were formerly called "Ngaoho," but who are now best known as the "Arawa," seem to have fought with the invaders on the land now under investigation for a long time, and to have obtained "utu" for their constant defeats by occasional reprisals; but the whole assembled tribes were so utterly defeated in two successive battles at or near Kawa on this claim, that at length a peace ensued, based on an entire abandonment of the open lands to the Ngatirangihouhiri.

Tapuika have asserted that after the first fights with the Ngatirangihouhiri, they became closely allied with them by intermarriages, and that they continued to occupy the Maketu lands. The fact is probable enough, but it would only show that their ancestors had acquiesced-in the conquest, had given up the original title to their lands, and lived under the "mana" of the powerful invaders; and it is pretty clear that even then Rangiuru was their ordinary residence, and that they were effectually driven back from the Maketu side of the Kaituna River by the last swarm of the Ngatiawa immigrants, the Ngatiwhakahinga.

Thus all the ancestral titles over these lands, derived from the first comers in the Arawa canoe, were effectually swept away, and for many generations no one could have pretended to set up a claim, except under Ngatirangihouhiri, until an entirely new order of page 141things was originated by the incursions which the Ngapuhi tribes were enabled to make through their exclusive possession of fire-arms.

As soon as the first murderous onslaughts were over, the whole of the Arawa tribes seem to have been impressed with the necessity of suspending the jealousies which had kept them in a state of constant internal warfare, and of uniting to obtain firearms to prevent the repetition of the attack from the North. A position on the sea-coast was necessary to enable them to effect this.

Some alliances had been made by individual chiefs through intermarriage with the Ngatirangihouhiri, now known as Ngaiterangi, and having their chief settlements at Tauranga, and also with the Ngapuhi. Advantage was taken of these to obtain—by a deputation sent to the latter at the Bay of Islands—the advent of an European trader, Tapsell, from whom arms could be purchased: and from the former, permission for Tapsell to live at Maketu, and for the Arawa to dress flax in the swamps around it and on the banks of the rivers. This singular concession was made through Hori Tupaea, a Ngaiterangi chief still living, and who was present in the Court. He came to Maketu with an overwhelming force to assert his rights on Tapsell's arrival, and a very large payment was made to him by Tapsell for the privileges granted. The Ngatiwhakaue tribe were the chief movers in this affair, and they now try to magnify the transaction into an absolute sale of Maketu and all this land to them. It is obvious that such a sale was a thing quite unknown and unheard of in those times, and that it should have taken place is quite incredible; but even if it had been made, it was at all events very soon cancelled by the means, then much better understood as conferring rights to land, of irresistible force and the destruction of the purchasers and occupants.

In virtue of this concession by Ngaiterangi, the whole of the Arawa tribes, namely, Ngatiwhakaue, Ngatipikiao, Ngatitarawhai, Ngatitunohopu, Ngatirangiwewehi, Ngatirangiteaorere, Tuhourangi, and some others living with them, as Ngatiwhakahemo, Ngatipukenga, and Ngatipukeko, then set to work with characteristic energy to scrape flax to pay for the indispensable arms. To do this, the different hapus located themselves wherever they found most convenient around Maketu, with no regard to any ancestral or traditionary claims, and with no dispute, certainly without any remonstrance from Tupuika.

So matters remained until the well-known murder of Te Hunga, a relation of the formidable Ngatihaua warrior, Te Waharoa, which was committed by Haerehuka for the express purpose of involving his tribe in a desperate war. Te Waharoa immediately called on Ngaiterangi to assist him, and with them marched along the beach from Tauranga in great force, massacreing a party of Tapuika whom he met on his way, because of their hereditary connection with the Arawa tribes, though for many generations they seem to have had little communication with them, stormed the Maketu pa, killed the considerable chiefs together with all the people—chiefly Ngati-page 142whakaue and Ngatipukenga—who were in it, burnt the pa, together with Tapsell's house and store, and returned by the same way they had come.

The Arawa tribes speedily mustered to avenge this terrible blow, and their vengeance fell, not on Te Waharoa, who had inflicted the injury, but on his allies the Ngaiterangi. With characteristic imprudence, the Ngaiterangi held in quite insufficient force a very large pa at Te Tumu, a most indefensible spot near Maketu. It was stormed by all the Arawa, except the Ngatipikiao and a small part of Ngatiwhakaue, who happened to come up just too late. Ngatiwhakaue —a name which includes many important hapus—were very prominent in this expedition and in the assault, but all the associated tribes took part, including a small number of the Tapuika, who seem now for the first time to have joined the Arawa no doubt in consequence of the death of their kinsmen at the hands of Te Waharoa.

After the fight, the Ngatirangiwewehi and Ngatirangiteaorere made a claim to the land by setting up "rahui" on the right bank of the Kaituna river, which seem to have been maintained for about two years, and then to have been thrown down by the Ngatitunohopu. The other tribes, also, seem to have seized as their own some pieces near Kawa and elsewhere, but they all returned to their settlements on the Lakes, where the war was still going on, and they do not seem to have thought of venturing to live permanently on any of the Maketu lands in defiance of the still formidable "mana" of Ngaiterangi and Waikato, until the Ngatipikiao made up a party from all the tribes they could induce to accompany them, and took the bold and decisive step of occupying Maketu in force.

Tapuika, it is clear, never ventured to make any objection to the occupation of the Maketu lands, or to set up any claim for themselves either on the first flax-dressing occupation or on the Ngatipikiao advance, nor is it conceivable that such a claim would have been listened to, or that its assertion would have been safe. It is true that after the final re-conquest—which was not completed until after several years more of desultory and intermittent warfare—the tribes in general settled down on the places with which their ancestors were connected by tradition, and that this was very generally assented to tacitly by the tribes, so that in investigating the titles to lands around and at some distance from Maketu, it is commonly necessary to look closely into the ancestral title; but this is generally for the purpose of adjusting disputes between closely-allied hapus, and nothing is more clear than that such rights derive their value wholly from the conquest, and from the resuscitation of them by the tacit consent of the conquerors. But it is utterly incredible that the whole of the allied tribes conquering the invaders of this great territory, after a long series of warfare, with immense losses of leading chiefs killed, and so recovering the lands connected with all their earliest traditions, should then give up the whole fruits of their conquest to a small tribe which had never assisted them,page 143except at the very last, and for no other reason than that ten generations before, their ancestors had been left in sole occupation of it. The conquerors cannot be shown to have ever thought of such a romantic generosity. The claim of Tapuika to Maketu itself is at least as good as that to Paengaroa; but Ngatipikiao and others have always occupied it without the smallest reference to such a claim. The lands immediately round it were seized by individual chiefs as they required them for cultivation, and not unfrequently they quarrelled for their possession. But the first suggestion of a claim by Tapuika seems to have been at the time of the purchase of Wharekahu by Dr. Shortland, in 1843 or 1844, when Te Koata made a claim for a share, in the horses given for the purchase; but even then it is not shown that he made the claim as a Tapuika chief, but it rather appears that he must have claimed only under his Tuhourangi descent, since he seems to have limited his claim to one horse, and it is doubtful if he even got that, while the Tapuika claim, as now set up under the shadow of the law, would extend to an absolute and exclusive right to the whole.

But the function of the Native Land Court is to ascertain who were the absolute masterful owners of the land at the time of the advent of the British Government, and the persons to whom those rights have now descended. It is certain that Tapuika were not in that position, that they neither held the land in visible occupation nor had any rights to which the occupants would then have assented. So far from that, it has been asserted that one of the conquering tribes, the Ngatirangiwewehi, shortly after the conquest at Te Tumu, actually suggested to their enemies, the Ngaiterangi, that they should obtain "utu" by destroying the Tapuika on their undoubted ancestral lands, Rangiuru, and that, from fear of treachery by the Arawa tribes, they last retreated for safety to Rotorua, where they stayed for some two years.

The Court, therefore, can have no hesitation in adjudging that the Tapuika have no rights whatever as a tribe, on Paengaroa.

There seems no reason to doubt that some of the descendants of Rangitihi, the Ngatitutea, have always been recognised as the owners of that portion of the block which lies to the South of Pakotore. These lands being near to the forest and to the permanent settlements of Ngatitutea at Rotoiti, their occupation, occasional at least, even in Ngatirangihouhiri times, is not improbable.

The title of the descendants of Tutea to that piece will therefore be affirmed by the Court, but the larger portion of the block, to the North, must be adjudged to all the conquorers at the storming of Te Tumu. The taking of that pa completed the re-conquest of these lands on the flat behind it, and made the re-occupation of Maketu feasible.

This occupation of Maketu, headed by Ngatipikiao, was no doubt one of the most important incidents in the long course of the re-conquest, and the title of that tribe and its allies to the great bulk of the land East of the Kaikokopu, which the Court has recently con-page 144firmed, was the reward of that well-timed and daring movement; but. it is unreasonable to stretch that exploit into an occupation of the whole territory, and to attempt to exclude the Ngatiwhakaue and their allies from the portion which they took by an act even more daring and successful.

The judgment of the Court is that a Certificate of Title will be issued in favor of such persons, not exceeding ten, as the members of the Ngatitutea hapu may agree upon, for that portion of the Paengaroa Claim, which lies South of a line from Korakonui to Karikari.

And that a Certificate of Title to the remainder of the Block will be made to persons similarly agreed on by the Ngatiwhakaue, Ngatitunohopu, Ngatirangiwewehi, Ngatirangiteaorere, Tuhourangi, and their associated hapus. And in both cases, if desired by the claimants, the names of the individuals entitled, as members of these tribes, can be registered as owners under the 17th section of the Native Land Act 1867.