of the township. We note also that Crown officials resisted the removal of restrictions on sale of the town sections and purchased many of them in the public interest, only when it appeared that the family might sell to private parties to whom they had become indebted. Given article 3 rights and responsibilities, we consider that there are limits to the protection that the Crown can accord to individual Maori owners of property which is no longer undivided tribal property. As discussed earlier, the prejudice arises initially from the system of land law which divided community land into individual interests alienable without further involvement of the community.

ES.9 Taonga and Wahi Tapu

We have considered the claims of several Hauraki groups that their wahi tapu were not protected by the Crown when blocks of land were sold. In many cases the evidence available has not enabled us to make findings on particular cases, especially where land was sold to private purchasers. But there is a more general issue. The Crown has acknowledged that where Maori requested reserves to be set aside for urupa or wahi tapu, its fiduciary obligations required the Crown to do so. Moreover, because many of the early Crown purchase deeds did refer to reservation of wahi tapu, and some oral agreements to that effect were made after that time, it is likely that Maori vendors commonly assumed that sales of land to the Crown did not necessarily mean loss of control over wahi tapu. In practice, however, the nature of freehold titles, especially when held by private parties, meant that only where wahi tapu were pointed out and specific requests made for their reservation did the Crown offer active protection - and not always then. The losses of wahi tapu were therefore part and parcel of the alienation of the great bulk of Hauraki land.

We consider that real prejudice has resulted over the past 150 years from the desecration and destruction of wahi tapu sites and from the taking of movable taonga for private collections and for export, in breach of the clear article 2 guarantee to Maori that they would be protected. Maori spiritual sites and moveable taonga were usually treated as less important than the rights of private property owners. We consider that compensation is due for these breaches and the resulting prejudice, to enable Maori to reclaim lost taonga where possible, to foster skills to assist in the creation of new taonga through a vibrant arts culture, and to assist Maori with consultation procedures for the better protection of taonga and wahi tapu. We recommend that the Resource Management Act 1991 be made more consistently effective for the protection of wahi tapu and taonga (which the Crown has conceded is not always the case), and that the Government, local authorities, and Maori should work together to publicise the protection measures available under it and ensure their use to the fullest extent possible. In this context, we note the difference between archaeological sites and ‘living’ wahi