History and the Law

The occupiers of Bastion Point could have been kicked off the land any time in the last 17 months. The government has always claimed the land belongs to the Crown and have thus always considered the occupiers as trespassers. Yet they waited until Justice Speight in the Supreme Court had brought down an injunction which did no more, legally, than render the defendants liable to contempt of court if they refused to stop "trespassing".

The effect of the Supreme Court hearing was to-make it appear that the Ngati Whatua case has been given the full consideration of the law, that the government had bent over backwards to reach an amicable agreement with all concerned, and perhaps most important of all, that the government's role in the whole affair was completely justified. The injunction provided "moral" support for the government and could be seen by many as the excuse for the invasion of Bastion Point by the police and army.

There is only one way in which the Court hearing is relevant to Maori land rights, at Bastion Point or anywhere else: it shows very clearly how the legal arm of state is used to reinforce the government policy of using whatever Maori land it wants for its own purposes, regardless of whatever rights may be involved. In fact, the findings of the Court in this case coincide almost exactly with the Crown submissions. The following analysis of the Court proceedings (taken from "Bulletin no. 14, the newsletter of the Orakei Maori Action Committee Action Group) recounts the History of European "justice" at Bastion Point.

The Basis of the Crown's Case

Equity?

The Native Land Act of 1909 said that all previous restrictions on the alienation of Maori land would no longer be adhered to. As this affected Orakei, the Crown was now able to ignore the Land Court ruling of 1868 and later recommendations that at least the papakainga (40 acres) be set aside as inalienable.

One provision which might have offered protection to the owners of the Orakei block was that which said that no transactions were to take place which left the owners landless. The Crown simply ignored that provision which said that if Maoris should become landless as a result of these transactions, the transactions were still valid anyway!

Another section stipulated that if Maori land was owned by more than ten owners in common a meeting of all those owners had to be held before it could be alienated. But in 1913, shortly before the Crown began its aquisition of the Orakei block, the Native Land Amendment Act was passed and allowed the Crown to purchase land without such a meeting.

Alienation the Aim

The inescapable conclusion has to be that these laws were passed to help along the alienation of Maori land. Predictably, Justice Speight adopts the official view that while there had been some "chicanery" in early land dealings the 1909 Act was designed to "untangle the web" of Maori land law and thereby implies that it was passed to protect Maori interests. He even goes to the extent of quoting politicians of the time, who claimed that the Act was passed largely because of Maori pressure for it. (g)The Crown's use of the law to legitimise its aims was most clearly illustrated when it acquired the four acre church site. This area had been gifted by Apihai Te Kawau in 1859, to the Anglican Church for use as a school, church site and burial ground for his people. The Church used it for these purposes for only a brief period (the urupa continued to be used by the Maoris) and Maoris continued to occupy the land. In the mid-1920s the Crown started looking for ways of acquiring the land as part of its plans for a special law which exempted the Church site from all prohibitions on alienation and purchased the land from the Church for 1,000. The Maori occupants were evicted.

(h) The most glaring injustice perpetuated on the Ngati Whatua of Tamaki resulted from the Crown's desire to also acquire all the 40 acre papakainga which had been set aside as a reserve under the first Partition Order of 1898.

Despite petitions, deputations to Parliament and the resistance of non-sellers, the Crown slowly acquired the papakainga and refused to act on the many proposals for vesting this land permanently in the Maori people. The last 2 acres were taken compulsorally in 1950, with the occupants being evicted into state houses in Kitemoana St. Their freehold homes on the flat were bulldozed to the ground.

Once again Speight agrees with the decision of the 1938 Royal Commission that there was "no moral or legal bar to the Crown's purchase". Speight also goes along with the Crown's argument that the village was an "eyesore" and "insanitary", and that this was one of the main reasons for acquiring the last remaining acres of the Orakei block, leaving the Ngati Whatua of Tamaki totally landless but for a ¼ acre urupa.

Calculation the Game

But the facts do not accord with this assertion. As far back as the early 1920s the Crown had decided to acquire all the Orakei block, and from then on began examining possible sites for "relocating" the Ngati Whatua of Tamaki. In the mid-1920s it adopted a design scheme for its planned "model suburb" at Orakei, which showed tennis courts and playing fields on the area still occupied by Maoris. Speight makes no comment whatsoever on this point.

Secondly, the Crown was directly responsible for living conditions on the papakainga in that it built the sewer along the beach frontage at Okahu Bay in 1912 (against Maori objections) and persistently refused requests to provide assistance in upgrading the village. The Crown's hypocrisy is clearly apparent here. After being largely responsible for living conditions in the village it then used them as its rationale for demolishing it altogether.

Therefore, the facts show that the Crown wanted the Ngati Whatua of Tamaki out of the Orakei area altogether, callously ignoring the meaning of this land to the Orakei Maoris. The fact that it did not suo ceed in "clearing" the flat until I 950, and then had moved the people into state houses close to the area, had nothing to do with the Crown's generosity. This was the result of strong resistance from the Ngati Whatua against the Crown's plan to acquire their last remaining acres and their total refusal to be "relocated" out of the area.

Speight makes no criticisms of the Crown's actions in this regard, saying that the final eviction was executed in "good faith" and was the "best solution for the benefit of the people". He doesn't bother to comment on the fact that with this eviction the Ngati Whatua of Tamaki lost their Marae, Te Puru O Tamaki, and to this day do not have their own marae.

Recent Proposals

(a) Speight concedes that the government's 1976 development Proposals for Bastion Point, which first led to the occupation of the land, lacked any understanding of Maori "sensitivity" on this issue. But he concludes that the government's latest proposals appear to "bring peace with honour" and represent a "handsome remedy".

He makes this outrageous statement despite the $257,000 price tag on the deal and the fact that the Ngati Whatua could end up with a total debt (from housing and roading costs) of ½ million dollars. Only 25 acres are being returned to Ngati Whatua control: the open land around Bastion Point totals over 160 acres. Provisions for more Maori housing are vague as to how many houses can be built, when they will be built and how they will be financed. The only mention of the papakainga contained in the proposal is to extend the urupa at Okahu Bay by ½ acre. The Orakei Marae is excluded from the proposals, meaning that the Ngati Whatua of Tamaki will continue to live without their own marae. Finally, it ignores the fact that the Ngati Whatua of Tamaki have already paid over $1 million in rents on their state houses in Kitemoana St.

Speight's conclusion that the Crown is showing good sense in leaving most of the land at Bastion Point as "public reserve accessible to all" evades the main issue in this whole controversy. That is, that a just settlement requires that the land should be vested with a Ngati Whatua Trust Board, the question of use being something which is subsidiary to that principle.

Divide and Rule

Speight totally whitewashes the Crown's role in deliberately seeking to divide the Ngati Whatua of Tamaki and hence undercut support for the land occupation.

(a) He describes the proposals made to government by Professor Hugh Kawharu, only nine days after the occupation of Bastion Point, as the work of "wise heads". These proposals, submitted to government without consultation with the Action Committee, called for the Ngati Whatua agreeing to the planned sub-division and relinguishing all further claims to the Orakei lands!

He makes no comment of the fact that the government chose to negotiate solely through this person, other than to report the Crown's contention that Mr Kawharu acted as "an intermediary" between the government and tribal elders. He does not comment on the fact that Professor Kawharu only came on the scene after the occupation of Bastion Point and after the government found itself in an embarrassing position, and that the so-called elders group which Professor Kawharu represented also did not exist until after the occupation had pushed the government into a difficult position.

(b) Speight makes no criticism of the way the government conducted its negotiations with the elders group behind closed doors in the Auckland Town Hall, with all dissidents, being excluded by security guards. He does not comment on the fact that if the government really meant to do justice to the Ngati Whatua of Tamaki it would have discussed its proposals on the Orakei Marae before all the tribe. Speight merely repeats the charge made to the court by Mr Brownie Puriri that the four defendants had "behaved in a manner iminical to Maori tradition" and had been "disrespectful of their ciders". Justice Speight described Mr Puriri as the "interpreter" at the Town Hall-meeting; the Minister of Lands, Venn Young called him the "spokesman" for the elders group; and Mr Puriri described himself in the court as a kind of intermediary.

Speight neglected to mention the evidence of Mr Hemi Pihema, the Chairman of the Orakei Maori Committee, who explained that he was excluded from the Town Hall meeting by the instructions of Mr Puriri. Mr Pihema, it should be noted, is not even a member of the Action Committee and doesn't support all its actions.

Speight also doesn't appear to have seen any conflict of interest between Mr Puriri's relationship with the elders group and his position as a Crown officer (holding a high position in the Department of Maori Affairs, Auckland).

Conclusion

Justice Speight's ruling represents a whitewash of the Crown's past dealings with the Orakei lands, of the latest proposals, and of the Crown's sordid role in dividing the Ngati Whatua of Tamaki. Once again the legal system of this country has shown itself to be stacked against the recognition of Maori land rights.

From the beginning, the tour defendants pointed out that the only just solution to this issue had to be a political solution, not a judicial one. They even suggested to Speight that he should deny the injunction sought by the Crown and make a strong recommendation in that direction. Their appeal was ignored. But the struggle is not over.