ES.2 Pre-1840 Transactions and Pre-Emption Waiver Purchases

Pre-1840 transactions between settlers and Maori, and direct purchases by settlers from Maori under Governor FitzRoy’s waiver of Crown pre-emption in 1844 to 1846, were investigated by a sequence of land claims commissioners. The investigations resulted in some 42,000 acres of ‘old land claims’ and about 3400 acres of waiver purchases in Hauraki being awarded to settlers. The Crown retained some 5700 acres as ‘surplus land’ - that is, land where the transaction was considered to have extinguished native title (creating a title in the Crown, which had assumed sovereignty in 1840) - and in the interests of curtailing ‘land sharking’ and promoting closer settlement, the land was not granted by the Crown to the initial purchaser.

This was a relatively small percentage of the claim area, compared with old land claims in Tai Tokerau, or in South Auckland where Hauraki tribes were among the customary right-owners. It stands to the Crown’s credit that its requirement that the claims be investigated at all, and alienations affirmed by Maori witnesses, caused some hundreds of thousands of acres of speculative claims in Hauraki to lapse or be withdrawn. Even so, Maori claimants to the Tribunal have submitted that the inquiries by the land claims commissioners were inadequate and that most transactions were not intended to be sales in the European sense but grants of occupation wherein the tribes retained underlying rights.

In our view, the evidence shows that the investigations were indeed flawed and many, though not all, of the initial transactions did not extinguish all the interests of all the customary right-owners. However, we have also noted that many of the transactions were effectively renegotiated during or soon after investigations by the land claims commissioners, Maori frequently accepting the transfer of areas much reduced from those originally claimed by settlers. Some disputed areas, notably in Piako and on Waiheke Island, were overlaid by subsequent Crown purchases.

The Crown acknowledges that the investigations into McCaskill and Martin’s purchase at Hikutaia were inadequate, and were ‘a failure of process and good faith’. It accepts also that the land later awarded to Ngati Pu hapu was inadequate compensation. We agree, and note also that other hapu besides Ngati Pu (particularly Ngati Karaua) may have been prejudiced. We also consider Bell’s award to Willis of 1797 acres at Tairua to have been based on flimsy evidence.

Some claimants have focused particularly upon the Crown’s retention of land as ‘surplus’ to be the most prejudicial aspect of these matters. However, we do not consider that the land retained as ‘surplus’ was in a fundamentally different category from that awarded to the initial settler transactors: in respect of both categories Maori were prejudiced by the inadequate, protracted, and confused nature of the Crown’s investigation of the initial transactions or by the failure, in some cases, to make adequate and prompt adjustments to remedy defects.