Governor Grey vigorously attacked FitzRoy's policy as 'contrary to the Treaty of Waitangi, and so injurious to the interests of the natives, that it [was] incumbent upon the Government to discharge the duty it owe[d] to these people by itself taking the initiative in setting aside the unjust claims which have arisen'.71 He then submitted the question to the Supreme Court which found that the waiver of the Crown's right of preemption was illegal and void.72 All the large island claims, for which Grey reserved his greatest ire, were referred to the Attorney General, and subsequently disallowed for failure to comply with regulations under the Land Claims Ordinance 1846, gazetted on 16 June.73 Although Grey couched much of his attack on the waivers in terms of the impact on Maori, those blocks were then treated as belonging to the Crown, with Commissioner Bell making adjustments in the late 1850s out of the land left after on-sale in the interim. The most significant purchase for Hauraki, under the waiver system, was that from Ngati Maru, by Whitaker and du Moulin, at Great Barrier. Although supposedly entitled to 3,500 acres under the waiver certificates, Whitaker and Du Moulin's joint purchase was subsequently surveyed at over 28,000 acres, most of which was treated as Crown 'surplus'. This case will be discussed more fully, in that context, in the following sections.
Summary
The transactions undertaken by the Hauraki people in the first years of contact would seem to fall within the parameters established by the Waitangi Tribunal in its examination of Muriwhenua lands. Maori signed deeds to consolidate their rights over territory and in order to secure the benefits of permanent European presence. The termination of their own rights over those areas was not contemplated, nor were the future implications of the transaction perceived since there was little to signal the European interpretation of the deed as conveying a permanent and exclusive possession.
As a result of these early transactions, Ngati Paoa holdings on the isthmus of the mainland by the late 1840s had been narrowed down in British law, to 'reserves' at Maraetai which were not in their own title.74 The impact of this loss was obscured from both sides at first: from Maori by the absence of immediate Pakeha settlement on lands so acquired, their assumption that the traditional principles of land tenure still applied, and retention of interests in Waiheke and the peninsula; and from the Government by a failure to distinguish clearly between various iwi. Government officers appreciated from early on that tribes near settlement tended to suffer, but from social debilitation rather than land loss. In any case, Protector Clarke saw Ngati Paoa as 'Thames' people distanced from the worst influences:
71Grey Memo., 20 April 1847, end. 3 in Despatch from Governor Grey to Earl Grey, 19 April 1847. GBPP, vol. 6, 1847–1850, p. 34.
72Judgment of Justice Chapman, end. in Despatch from Governor Grey to Earl Grey, 5 July 1847. Ibid.,
pp. 64–66.
73 NZ Gazette, 16 June 1846, p. 42.
74See discussion, in context of Fairburn purchase, pp. 64–68.
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