springs were ‘simply taken by the Crown’. Furthermore, Ngati Rahiri Tumutumu’s understanding that they would maintain free access to the springs had not been acknowledged by the Crown, they had ‘suffered ongoing discrimination in the management of the hot springs from 1878 to the present day’, and the Crown had thereby breached the Treaty principle of good faith and the duty to remedy past breaches.⁷⁴

In respect of Te Aroha township, counsel submitted that ‘the Mokena whanau tried to encourage settlement on their Te Aroha lands’ and thus assured development on sections 15 and 17:

The growing need for land by settlers and the perception by settlers that the growth of the town was incompatible with the existing Maori ownership led the Crown to progressively erode Maori interests in sections 15 and 17 so that by 1917 the Mokena whanau no longer owned the land on which Te Aroha township stood.⁷⁵

Counsel then outlined the various transactions on these two sections and suggested that the claims ‘illustrate the way in which the individualisation separated iwi from their lands and made those put on the title vulnerable . . . and not accountable to the rest of the iwi’. Counsel also submitted that ‘the Crown took advantage of debts incurred by the individual whanau members and acquired their interests’. The Crown also passed legislation which overrode ‘the wills of Rina Mokena and Ema Lipsey which sought to protect the ownership of the whanau lands’. Counsel concluded that the Crown had failed ‘to meet its duty of active protection towards the Mokena whanau in its attempt to undermine what was a working partnership and thereby breached its Treaty obligation to ‘act with utmost good faith’.⁷⁶

19.8TRIBUNAL COMMENT ON TE AROHA MOUNTAIN, THE HOT SPRINGS, AND THE TOWNSHIP

Although the land was sold to the Crown in 1878, it is clear that Te Aroha mountain has remained a maunga tapu, a sacred mountain, in the minds of Ngati Rahiri Tumutumu and Hauraki people generally. The Crown acquired the Te Aroha block in 1878, including both the western side of the mountain and the hot springs at its base. The eastern portion of the mountain, inside the Tauranga confiscation line, had already been acquired by the Crown in 1864.⁷⁷ However, in the subsequent management of both the mountain and the hot springs

74.Document Y5, pp 4-5

75.Ibid, pp 5-6

76.Ibid, pp 13-14

77.Waitangi Tribunal, Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims (Wellington: Legislation Direct, 2004), pp 177-192