The Story of a Maori Chief
Chapter 12 — The Native Land Court: a Long Litigation
The Native Land Court: a Long Litigation
It has been said that the history of Kautuku (or Marangairoa 1 D) is the history of Mokena Kohere, so it would not be out of place to say something of the case in which I have been a litigant for over 35 years and in which I mean to fight until I recover my people's ancestral home and sacred places.
It is a well-known saying of the Maoris, “He wahine, he whenua, ka ngaro te tangata” (“For women and land men perish”). And everybody is familiar with Macaulay's words:
To every man upon this earth
Death cometh soon or late;
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his gods!
On the outbreak of the Hauhau troubles on the East Coast in 1865 Mokena Kohere and his people were living at Waioratane, on Kautuku. He left there and moved on to the flat land below, where he and his people erected a temporary camp, which he called Kati Kautuku, or The Doorway to Kautuku. It was his intention to prevent all trespassers setting foot on Kautuku. Later he moved on to Hatepe, where he built a strong pa.
Readers have already learned how Mokena Kohere and his small garrison defended Hatepe and would have been crushed but for the timely arrival of white troops from Napier. They must have come to the conclusion that Mokena Kohere, as a Maori chief, was no ordinary person. They will be in a position to judge whether the comments of the Native Land Commission on Mokena are justified or not.
By a special enactment of Parliament a Commission composed of Chief Judge G. P. Shepherd and Judges J. Harvey and E. M. Beechey, sat in 1942, to hear petitions in respect of the block. This hearing was to be final. I was not struck with the personnel. Two were new judges and the third I knew as a clerk in the Gisborne office and later as a registrar page 87 of the Native Land Court at Gisborne. I know very little of Judge Harvey or whether he had been engaged in the investigation of titles to native lands. He is not a lawyer, as I think the other members of the Commission both are. Were they to bring finality to a long litigation in which experienced judges had failed? The fact that Parliament has granted our petition several times proves conclusively that it has very strong grounds. I have always held that to ascertain the ownership of native lands is not at all difficult. It is simply finding out who occupied the land. The fact of the proper occupation of any native land must rise to the surface amidst prevarications, cunning and bluff.
The judgment of the Commission, after a lapse of three years, was delivered at Tikitiki on 10th March, 1945. It was a devastating decision for me and my people. What we regained in thirty years we lost at one stroke of the pen. The Commission was not unanimous, the Chief Judge dissenting.
In the majority judgment Judges Harvey and Beechey said:
Part of his (Mokena Kohere's) importance or mana no doubt arose from his connection with the Government, and his position of Government agent.… Part no doubt arose from his able and aggressive personality, and his desire to foster the interests of his people. But no research on our part of the Court records has been able to convince us that his position amongst his people arose from the importance under ancestral rights.
I may here remark that no Maori could exercise mana unless he belonged to the sub-tribe who owned the land. Early in this book it is pointed out that Mokena Kohere never entered the Native Land Court, so to search Court records in order to obtain a proper estimate of the chief's life would be a useless task. I hope Judges Harvey and Beechey will some day read this book if they wish to know properly what sort of man Mokena Kohere was. I shall now briefly give the opinions of people, both pakeha and Maori, who knew Mokena Kohere intimately.
We know already he was instrumental in suppressing the Hauhau rising on the East Coast in 1865 and thereby he helped to save the country from disaster. On his own responsibility he pardoned the rebels and he resisted success- page 88 fully all attempts to confiscate the Ngati-Porou lands. He also refused to accept from the Government a large sum of money.
Harawira Huriwai, whose opinion is that of an expert, said on different occasions:
“Mokena Kohere saved land from being confiscated.”
“I heard of Government money being returned by Te Mokena.”
“At Wharekahika (Hicks Bay) Major Ropata (Wahawaha) and (Col. T. W.) Porter wanted land sold, Mokena said to Wi (Wanoa) and Wiki (Matauru), his tamarikis, ‘Keep the land as a playground for yourselves and your tamarikis,’ meaning Marangaroa No. 1.”
Keeti Ngata Ngatai said: “Kohere's mana was before Hauhauism” (not bolstered up by pakeha).
Neho Kopuka, one of Ngati-Porou's leading chiefs, referred to Mokena's action in saving Ngati-Porou from the Government, and Paratene Kamura said: “Mokena saved Mr. W. Baker, Government agent, from his enemy in 1862.”
Hori Waikari: “Mokena managed the mill at Waikaka” (a water mill).
Paratene Kamura: “I never heard Mokena restricting Hahau, but I did hear of his doing so with Marangairoa No. 1.”
Bishop William Williams, first Bishop of Waiapu says of Mokena Kohere in his Christianity Amongst the New Zealanders: “Four years ago I was travelling along the Bay of Plenty, in company with the Rev. Rota Waitoa and Mokena, the leading chief of Ngati-Porou.”page 89
According to the Commission, Mokena Kohere had no right to Marangairoa 1 D. Yet I remember Judge McCormick saying in the first Appellate Court: “How could it be possible that Mokena Kohere had no interest in this land when he is of your own flesh and blood?”
The first Appellate Court (Judges McCormick and Rawson) found on that occasion: “There is no doubt as to the occupation of Mokena Kohere, but that may perhaps be accounted for otherwise than by ancestral right from Mataura. We are of opinion that his occupation was of right, though not of right from Mataura.”
I am puzzled that two experienced judges should have made this qualifying statement. What does it matter how the right is derived so long as it is a right? The Appellate Court did not give Mokena Kohere a single acre. He was banished from Marangairoa 1 D., the very land he restricted from all alienation—banished as though he were a foreigner instead of being the paramount chief.
Judge Carr tried to give us some relief, but Judges Harvey and Beechey quashed his decision.
I have wondered what was the purpose of Judges Harvey and Beechey in criticising my grandfather's mana. They could crush him without all this. While I was speaking on the point of mana before the Commission Judge Harvey suddenly interrupted: “I must see that my friends are not misled.” It seemed obvious that he had read up the case beforehand, and every time I disagreed with what he had gathered he interrupted. Another time Judge Harvey interrupted me about my grandfather's residence at his main home, Waioratane. It dawned on one that he must have read the first Appellate Court's blunder when it stated that my grandfather's occupation at Waioratane could not help my case, for the place was outside the block. In his report Judge Browne stated that the Appellate Court had made a blunder. Probably Judge Harvey had not read Judge Browne's report.
Our opponents were represented by a very able conductor, Mr. Mafeking Pere. When on his rounds Mr. Tiaki Omana, now member for the Eastern Maori District, engaged Mr. Pere as his secretary. One of the party, Manakore, publicly stated that a tragedy had been committed in Marangairoa when the Native Land Court had given away Kohere's ceme- page 90 teries. He could have received the information only from Mr. Mafeking Pere (who had represented our opponents). That is the general opinion amongst Maoris not personally interested in the case. My opponents know very well that my cause is just, only I am bumping my head against a stone wall. The fact that our three burial grounds, in one of which my own father was buried, were given away proves without a shadow of doubt that there is something utterly wrong. For judges to argue in order to convince me that my people were wrong in burying their dead in Kautuku is only to add to my sufferings. Judge R. N. Jones, the first Appellate Court, the second Appellate Court and down to Judges Harvey and Beechey, of the Commission, never refer to Ngati-Hokopu's cemeteries in their decisions.1 The last two judges waxed eloquent to show how the occupation of Mokena Kohere and his people means nothing; although the occupation was admitted by the court and our opponents, it was alleged it was without right or take. The two judges imply they are bound to accept the statement of our opponents that the occupation was without right. Our word is of no value as compared with that of our opponents. This was also the attitude of Judge R. N. Jones.
Judge Browne, in his report to Wellington, said:
“There is no doubt as to Mokena Kohere's occupation at Waioratane, and admissions made in the evidence before the first Court went to show that his ancestors occupied at Hurimoana pa, which is to the south of Waioratane but within the alleged overlap, and this occupation is, in my opinion, not altogether referable to the Hauhau rebellion. The ancestral ‘takes’ set up are usually of such doubtful authenticity and the evidence regarding them so unreliable that it seems to me to be always the safest course, when undoubted occupation was by right and not on sufferance.”
What is wrong with this report? And why are Mokena Kohere and his descendants not reinstated in their own land?
1 Judge McCormick, at the sitting of the first Appellate Court (1920), when I was speaking on our lost cemeteries, suddenly interrupted me by saying: “Mr. Kohere, it is inconceivable that a land court should give away tribal cemeteries.”
As to Judge Jones's admission of our conquest, here are his own words: “It was a bloodless victory, for the parties ran away, but the Court does not think any land was taken in respect of the event, so that claim of conquest is dismissed.”
If this is not an admission of conquest, what is it? And because the war-party found their intended victims had fled was not that an extra reason for seizing the land? Judges Harvey and Beechey mean that the warlike Ngati-Hokopu lived on the land because Wiremu Mangai married Hiria te Kiekie, of the runaway tribe. That explanation, given by our opponents, was accepted by Judges Jones, Harvey and Beechey. It never occurred to them that the wives might possibly have lived on their husbands. At any rate, Chief Judge Shepherd, chairman of the Commission, differs from his two colleagues. He states: “On the whole, I am inclined to think that the second court (Judge H. Carr) was right in deciding for confiscation, followed by occupation.” He also mentioned, amongst those who occupied, Mokena Kohere1 and his sister, Irihāpeti. Neither of the two married into the conquered people. Why did not the other members of the Commission find that Mokena and his sister occupied Okahu?
The most dramatic battle fought on Kautuku was between our people, led by Mataura, and an attacking party led by Paka (already referred to in Chapter 3). To save his people and the land Mataura, our ancestor, was compelled to hand over to Paka his young granddaughter, Whirituarangi. We claim that Mataura defended his own home, but our opponents claimed that he was only a refugee in the pa. The refugee story was believed by Judges Jones, Harvey and Beechey.
About the year 1871 Mohi Turei's house at Te Rapa, on the adjacent Hauhau block, was burnt down. A Maori committee of inquiry found that the incendiaries had no right whatever to the land. It was an instance of pure spite and fanaticism. Mohi Turei afterwards moved to Waikoriri, on Kautuku block, and built a comfortable home there for himself and his family. Even to-day trees planted by Mohi are to be seen, old and gnarled. Whilst living happily and peacefully Mohi Turei and his family were one day suddenly set upon by a man named Wi Tupaea and others of the same hapu as those who had burnt down his house at Te Rapa. Men and women pulled down Mohi's fences, and but for Mohi's intervention blood would have been shed. While this was happening Mokena Kohere was at Wellington. The matter was referred to a Maori committee with a quasi-legal status in 1889. Mohi Turei and Ngati-Hokopu claimed the land as the papatipu of Mataura, while their opponents, led by the Chief Anaru Kahaki, claimed on an alleged gift made by a woman named Hinetangi to the chief Hihi (Pakura's brother and thus a member of the Ngati-Hokopu Tribe). Granted there was a gift, Hihi never occupied Waikoriri, for he died shortly after, nor did his descendants occupy. Anaru Kahaki enumerated the people who occupied, viz., Te Paraone Pohokura, Hakaraia Kauariki, Te Ratu, Pakura and his children and others down to Mohi Turei himself. “Pakura's children” would be Kakatarau, Parata, Mokena Kohere, Te Kooti Tipoki and Irihāpeti, all members of Ngati-Hokopu. He never mentioned descendants of Hihi as having occupied. I cannot understand why Mohi Turei has not regained his old home, from which he was mercilessly driven off. The claim under gift to Hihi cannot be established under any cir- page 93 cumstances. Anaru Kahaki and all those who took part in the Waikoriri trouble were not descendants of Hihi, so their action was purely gratuitous! Was there ever such a weak case? And yet it succeeded and still stands.
The history of the case is given in what is known as the Waikoriri Committee Book, which is considered official and has been translated into English. It is very valuable, for it contains the testimony of the elders. It also mentions that members of the Whanau-a-Takimoana, whose ancestral home is near East Cape, first entered the Waiapu Valley in 1882. The Whanau-a-Takimoana are amongst our chief opponents. Their elders were buried at Takapautahi, but recently they have been burying their dead at Aratia, a cemetery belonging to Mokena Kohere and Crown-granted to us his descendants. Naively, the Whanau-a-Takimoana have erected at Aratia a large monument to the memory of their grandsire, Takimoana. So devoid are they of any sense of humour that they could not see how ridiculous the monument could be.
Naturally, a good occupation like that at Waikoriri would result in the formation of a tribal cemetery. Taumatapakihore, an exclusively Ngati-Hokopu cemetery, is situated on the ridge above Waikoriri. Here Mohi Turei's elders, Paaka (the man with the hatchet), Pohokura, Omanga and others were buried; here Maraea Puahau and Mereana Puwharariki, Hemi Tapeka's mother, were laid to rest. The latter died at Tikapa, across the Waiapu, but her body was brought to Taumata-pakihore and buried there. As late as 1930, many years after the decision of the Native Land Court, Waiaka, Mohi Turei's eldest daughter, at her last wish, was buried with her forbears. My duty is to record, not to comment.
Although Mokena Kohere was not included in Taupo or 1 D. 10, my grandmother, Marara or Hinekukurangi, was. I also put in a claim for this portion on behalf of my people and was given a few shares, the descendants of Tauramotuhia taking the larger portion of the block. Our petition (re Marangairoa 1 D. or Kautuku) alleges “that the decision of the lower court was arbitrary and that our ancestor, Kotihe, was alone entitled to the land, as only he and his descendants were proved to have occupied.” On this Judges Harvey and Beechey commented: “The sweeping claim made in the petition is so far unsupported as to make the claim ridiculous.” page 94 And yet Chief Judge Shepherd, chairman of the Commission, himself produces evidence in support of our claim. In his judgment he says: “There was ample evidence to prove that she (Kotihe) occupied on the boundary between Taupo and Pakihi and that her descendants, Marara Kukurangi and Maata, were born on the land.” (If the two women were born on the land it naturally follows that their parents occupied the land also.) On the other hand, there is not a scrap of evidence to show that Tauramotuhia and his descendants ever occupied the land.
Our joke has not yet been appreciated that because Marara and Maata were born on Taupo, our opponents offered us ten shares out of 500, and because they were born at Tikapa, a long way off, they gave themselves 490 shares. I don't remember seeing anybody laugh; even the judge kept a solemn face.
During the hearing before Judge Jones in 1913 I asked the chief Enoka Rukuata whether he admitted my people's occupation of Kautuku, from our ancestor Mataura down to the time of Mohi Turei. His reply was: “Yes, but your people occupied as relatives.”
I compute that from Mataura to Mohi Turei would be a period of 250 years. In accordance with the philosophy of Judges Harvey and Beechey that occupation of two centuries and a half would be of no advantage to my people, who according to Enoka Rukuata occupied “as relatives” without rights.
The Herupara No. 1 case was heard by the Commission, and the judgment was given before that of Kautuku. Judge Harvey in his decision paid no heed whatever to occupation. I knew he had plenty of time for Sir Apirana Ngata, so early in the hearing of the Kautuku case I put in Sir Apirana's opinion on native land tenure before the Commission. It is as follows:
“Physical occupation of land is absolutely essential to title, whether derived from discovery, conquest, gift or inheritance.”1
1 The Maori People To-day, page 101.
For the Commission to accept Sir Apirana Ngata's opinion on Maori land tenure would be for it to acquiesce in our claim, for it is fundamentally founded on occupation, and that is not to say that the occupation was not founded on right or take or in accordance with Maori custom and usage. For the Commission to have accepted Sir Apirana's opinion on occupation would be to end the long litigation.
Before appeals pending against Judge Jones's decision were heard he was appointed Acting Chief Judge and later Chief Judge and Secretary to the Native Department. It was a mistake to promote him at that time, for his Kautuku decisions would certainly have been questioned since his decision in Pakihi, the adjacent block, was reversed by the Native Appellate Court (consisting of Chief Judge Jackson Palmer and Judge Rawson).
Judge R. C. Sim, a very able judge and thoroughly conversant with Maori customs, states in his Wharekahika judgment:
“It is clear that the greater part of Wharekahika Block became eventually the property of the descendants of Hukarere and Makahuri, principally those of Hukarere, firstly by virtue of the gift by Tamanuhiri and afterwards by gradual extension of the occupation.”
Here we see a very able judge recognising occupation outside defined boundaries. I may point out as a matter of history that Judge Sim threw out a claim by Paratene Ngata for the Wharekahika Block in 1908. Before the case was finished he was dismissed from the Native Land Court bench and for years he had to maintain himself by appearing as a conductor before the Native Appellate Court.
The Native Land Court always appreciated the testimonies of the elders. I placed before the Commission one such testimony. As far back as 1886 the chief Paora Haenga, speaking in the Pohautea case, stated: “The boundary of Mataura's land followed the river, which ran into the sea further north than it does now; the land south of this land and on the opposite side of the Waiapu River belonged to my ancestor, Huanga, the land directly opposite belonged to Hinepare.”
There is nothing more conclusive than this evidence, for page 96 it well describes Kautuku, a large portion of which we claim under our ancestor Mataura. Of course, I staked much on this piece of evidence, but the Commission says nothing about it. Paore Haenga never once sponsored our claim under Mataura, whose land has yet to be discovered.
With one more statement I conclude. The preamble to the joint judgment of Judges Harvey and Beechey states:
“It has been remarked in different judgments that the evidence given in relation to this land is very conflicting, and we have found this to be almost an understatement, and it is a matter of the greatest difficulty to discover where the truth lies.”
I do not agree with the above statement; there is nothing difficult in arriving at the truth if you go about it the right way—namely, find out who occupied. Our opponents never occupied and have no cemeteries on the land. Not one court has ever stated that our opponents did occupy Kautuku, at least the portion of it we claim.
It is never denied we have burial grounds on the block. It is never denied Mokena Kohere lived at Waioratane. It is never denied he lived at Katikati. It is never denied NgatiHokopu lived at Waikoriri. It is never denied Ngati-Hokopu lived at Ipuarongo (1 D. 20). It is never denied Marara and Maata were born on Taupo (1 D. 10). It is never denied Mokena Kohere and his sister, Irihāpeti, lived at Okahu (1 D. 6). It is never denied that the elders of Ngati-Hokopu lived in Hurimoana Pa. It is never denied that Mataura defended Pukekiore Pa and sacrificed his young grand-daughter, Whirituarangi, in order to sue for peace, and thereby to save both his people and the land. The only thing denied us is justice.
To My Father in the Grave
O, my father! awake;
Thy restless couch forsake.
Why sleepest thou so calm?
Fling away Death's shackles; stretch forth thine arm;
For a slavish race has presumed to tread
On thy hallowed ground that should be its dread.
O, my father! awake.
page 97 Why restest thou? Arise and let earth quake,
For high benchéd incompetence has willed
Thy bed that mine hands so lovingly frilled
Is no longer thine own,
Oh! that thou, like Denmark's ghost, pale and lone,
Would'st kindle in me the Crusaders’ zeal,
To strike, to die—my broken heart to heal.