In virtually all of Maori society, the rights of hapu and iwi were dispersed in this way, within the area under the general control of the groups concerned. Rights were probably more than usually dispersed and intermingled in Hauraki, a relatively small area still being settled and fought over by many hapu as British settlers and officials began to penetrate the district. While certain natural features such as ridges, streams and prominent rock features were accepted by adjacent groups as boundary markers between them - perhaps alter negotiation following a period of conflict - the concept of a continuous circumference neatly bounding all the land rights of a group and separating them from those of adjacent (and related) groups was virtually unknown before contact. Thus, we consider claims to ‘exclusive possession’, pre-1840, by particular hapu over wide areas, made before this Tribunal on several occasions, to be problematic. Rather, we consider that the creation of such boundaries was driven by the process of post-1840 land transactions or the determination of ownership of distinct ‘blocks’ by the Native Land Court.

Moreover, virtually all spokespersons for the various claimant groups told us that the various iwi and hapu in Hauraki were closely intermarried. Individuals commonly identified with more than one hapu, and in many parts of Hauraki it would not have been easy to distinguish one hapu sharply from another or clearly define the relationship between them, especially after the tumultuous events following the Nga Puhi incursions. Again Dr Ballara has cited a Hauraki example to show that communities comprising sections of two or more hapu commonly came together under the mana of a particular rangatira, and held together for a greater or lesser period of time: in this case, such a community had formed from two Marutuahu hapu about the late eighteenth century but did not stay together after the return from Waikato in 1830.¹⁴⁸ It is also clear from land court evidence that much land was ‘whenua tautohetohe’: it was being struggled over between various groups, and it was by no means always clear which party was dominant at the time of Native Land Court decisions. Moreover, some groups which some Marutuahu iwi had claimed were subordinate or ‘rahi’ to them had maintained rights to some land independently, and had, moreover, become resurgent in times of greater security before 1840. We note that they were recognised by the Native Land Court as ‘owners’ of land, in terms of the Native Lands Act 1862 and its successors.

Land court judges worked under policy and legislative imperatives which required them to identify groups which seemed under custom to have the dominant customary interests in a given area of land and declare them to be the owners of that land. This inevitably led to oversimplification of complex intersecting rights. Dr Ballara’s research into many Hauraki minute books has shown how the court process reinforced the tendency of nineteenth-century officials to define iwi as clearly demarcated ‘nations’, with judges becoming impatient or incredulous when Maori witnesses described the intricacies of the lived reality.

148. Ballara, p 207