Chapter I: Hauraki and the Crown, 1800-1850

implications of the Treaty and the nature of British authority. Kahukoti repeated to George Clarke the arguments of local Pakeha that Maori would be little better than slaves if they had signed the Treaty, whereas those who had withheld their consent would remain independent and keep their land.77 Underlying such fears was concern about the fate of a dependency of New South Wales where Aborigines had been so mistreated.78 The news of Gipps' New Zealand Land Claims Bill, introduced on 28 May 1840, was met with initial suspicion within Hauraki, as elsewhere. George Clarke reported that both the Hauraki and Waikato tribes had rejected the idea, and cited the Whakatiwai people as asking by what right Gipps was determining their affairs.79 The Old Land Claims Commission thus provided the first overt test as to whether the Crown would abide by promises under the Treaty or follow the path set in Australia.

The function of the Old Land Claims Commission was to investigate purchases of land from Maori before New Zealand became a possession of the Crown. It was charged by legislation to inquire whether transactions were equitable or not, and where they were, to recommend the extent of lands to be granted to purchasers. These grants were not to exceed 2,560 acres, and were to be fixed in accordance with a schedule of prices designed to penalise speculators, reward genuine settlers, and enable the Crown to retain 'surplus' land (the difference between the land deemed to have been genuinely sold and the area granted to the purchaser), which could then be sold to settlers in order to promote colonisation and raise revenue.80

Although the intent behind the Commission was relatively benign, Orange suggests that its investigations 'were probably the aspect of government that was most unsettling to both Pakeha and Maori in the early 1840s.'81 The setting up of the Commission seemed to usurp the authority of rangatira who had negotiated early arrangements with pakeha newcomers. There was considerable dissatisfaction, also, with the process itself—in particular, the failure to properly define the grants, and to properly hear the case of all Maori before decisions were made. The most grievous shortcoming of the Commission was not, however, likely to be immediately obvious to the Maori participants: the failure to adequately consider what they had intended when they signed deeds. Although the Commission did not invariably make grants to Pakeha claimants in the Hauraki district, rejection of claims more usually resulted from the non-appearance of applicants, or the transgression of rules set by legislation, than from doubts of the fact of an absolute conveyance. That interpretation of the early deeds as signalling a conveyance of land within terms of the English legal system rather than as a social contract under Maori customary law was entrenched by the investigations and findings of the Commission.82 The Commissioners might doubt whether proper payment had been made to all parties, or that there was consensus on the boundaries of an alienation, but not that a sale had

77 Clarke Report, in Gipps to Russell, 7 March 1841. GBPP, 1842 (569), pp. 94-98. Doc. 2, pp. 8-io.

78 Orange, Treaty of Waitangi, pp. 95-96

79 Clarke Report, Doc. 2, pp. 8-10.

80 See W.H. Oliver, 'The Crown and Muriwhenua Lands: An Overview,' Wai 45. Doc. L 7, p. 5.

81 Orange, Treaty of Waitangi, p. 96.

82 Waitangi Tribunal, Muriwhenua Land Report, p. 109.

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