ES.12 Public Works Takings

Hauraki claimants have made extensive submissions concerning the legislative regime under which Maori land was taken for public works, and numerous instances of particular land takings, including those relating to the improvement schemes for the Waihou and Ohinemuri Rivers (following the use of those rivers as mining-sludge channels), the Hauraki Plains drainage scheme of the early twentieth century, and the taking of Ohinau Island for a lighthouse and a number of school sites. We note that, in addition to the specific takings of Maori land for public purposes, the Native Land Acts and Public Works Acts generally provided for the taking of 5 per cent of Maori land for roading purposes, without compensation, within 10 (or 15) years of its passing the court. The claimants submit that both in the particular cases and in general they were prejudiced by the further diminution of their already depleted estate, with inadequate compensation or countervailing betterment. We have given our findings on the particular cases in our report where the evidence allows (which is not always the case), and have recommended that land be returned where appropriate or the issues taken up further in negotiations.

Crown counsel have submitted that in considering whether Maori land should be taken for public works a balance has to be found between the Crown’s kawanatanga rights under article 1 and the rangatiratanga guaranteed by article 2, and accepted that in general Maori land should be taken for public works only where there are no other practicable options and after appropriate consultation with those affected. Counsel acknowledges that ‘the Crown must consider whether Maori are left with sufficient land for their present and foreseeable requirements’.⁷ In the light of these principles, the Crown has conceded that, in respect of the Hauraki drainage scheme, ‘There is some evidence that lands taken were required, but there is also evidence that more land than was required was taken’, possibly with insufficient consultation.⁸ Moreover, although Maori did have the opportunity to ballot for dairy farms in the scheme, ‘there is no indication whether this occurred’. There is no indication either that farms in the scheme were set aside for Hauraki Maori, even though the Stout-Ngata commission had not long previously reported that they could afford to lose no more of their land. We agree that Hauraki Maori must have received some indirect benefit from the scheme in terms of public roads and bridges, and potentially could have had better access to markets and dairy co-operatives. But (as the Crown also acknowledges) the benefit of such market access only accrues where sufficient suitable land was retained by Maori, which was patently not the case in Hauraki.

We note that the river improvement scheme led to some unfair outcomes for Maori in that compensation was not paid in the first instance because of alleged betterment to Maori as well as settlers. Investigations into Maori petitions subsequently disclosed that Maori

7. Document AA1, p 255

8. Ibid, pp 254, 255