Buddy Mikaere: Council should do the right thing for The Elms

The Elms, Mission House. Photo / File

COMMENT
In the late 1830s one of the most enthusiastic Māori supporters of Pākehā ideas about religion, dress, tools and governance; including the institution of British rule as represented by newly appointed Governor Hobson, was the Christian Te Rarawa Chief Nopera Panekareao.

When the idea of ceding the sovereignty of Aotearoa to the British Crown, with the Crown also holding sole pre-eminent rights to purchase land, was explained to him, he described his understanding of the transaction in a famous phrase: "The shadow of the land will pass to the Crown, but the substance remains with us."

But barely a year after the signing of the Treaty and the flood of land sales that followed, he came to realise that in fact the reverse was true.

In time this led to the establishment of "aukati" or boundaries beyond which sales of land to Pākehā were forbidden.

It was this approach that was behind the establishment of the Kingitanga – the Māori King Movement.

Here in Tauranga the first major land acquisitions were conducted by the Church Missionary Society (CMS) missionary Archdeacon Brown.

The land acquired for the purpose of establishing and supporting the mission made up most of the Te Papa Peninsula extending from Otamataha at the tip of the peninsula and extending to Pukehinahina Gate Pa.

Afraid that as with Māori lands in the north passing quickly from Māori ownership, the Tauranga land was to be held in trust for the welfare and benefit of Māori – in effect, ensuring that the "substance" would remain with Maori.

The terms of that trust expressly forbade the sale of land by the CMS for money.

But following the Battle of Gate Pa in 1864, and the application of the 1863 facilitating legislation The Native Settlements Act; an act which provided for the confiscation of land of Māori found to be in rebellion (the legislation being based on similar measures used in Ireland) extreme pressure was put on the CMS by the Government to give up four-fifths of its Te Papa holdings.

This land was then distributed and sold with some awarded to ex-soldiers including members of the Waikato Militia who had been persuaded to sign up for the promise of acquiring such cheap land.

These matters are all set out in an incredibly detailed report researched by theologian and historian Dr Alistair Reece – Naboth's Vineyard - which importantly concludes that the inheritors of the CMS legacy, the Anglican Church, were complicit in not abiding by the terms of the original Trust transaction signed by Archdeacon Brown.

Hence the apology to the original owners of the land Ngai Tamarawaho hapu and Ngati Tapu hapu by the Church leadership in November 2018 in a laudable act of contrition and reconciliation.

In acquiring the land from the CMS, the legal argument is that the Crown also took on the Trust obligations of benefit and welfare to Māori.

Interestingly there is a legal precedent already established with the Wellington and Nelson Tenths. These cases have almost an exact parallel with the Tauranga case and the Crown has accepted that to be the case, through a High Court judgment.

How do those transactions play out today in Tauranga? All the Crown properties in Tauranga fall within this same obligation "net" and the obligation has been met to a certain extent through the transfer of the underlying Government land into iwi ownership for Treaty claim settlements.

So, to an extent the Crown has "side-stepped" the trust obligation issue but nevertheless acted responsibly through another process.

But this raises the question of trust obligations to those former CMS lands passed by the Government into council ownership. Does the trust obligation pass from the Crown to the council? My lay opinion is yes.

That is why the current controversy over 11 Mission St is so pivotal. The church sold the land in breach of the original trust obligation. Subsequently the council purchased the land with the intent of passing it to the Elms Trust by way of a perpetual lease arrangement.

What happens through these transactions to the obligation to Māori? Does the morality of those transactions even warrant consideration?

The council courageously decided it would instead transfer the land to the representative hapū organisation the Otamataha Trust.

The trust would then lease the land to the Elms on the same basis as was intended by the council.

I was extremely pleased when this proposal was put forward because of its simple elegance which in one stroke restored the mana of owning the land to the original owners but still providing for the Elms to continue with its plans for an expansion of the historical site to accommodate its increasing popularity as a tourist destination.

It is ironic that this elegant solution is in effect a sad echo of the Shadow of the Land scenario that Panekareao came to recognise.

Listening via YouTube to the submissions made at the council hearing on this matter last week, I was deeply saddened to hear some of the arguments being put forward to support the view that the transfer of the land from the council to the Otamataha Trust should not take place.

Incredibly one of those arguments was the Terra nullius or "empty" unoccupied land argument used to justify the taking of Australia by the British in the 1700s.

The submission I heard was that when Brown arrived the land on which the Elms was established was unoccupied scrub therefore it was clearly available for taking.

I thought... seriously? Where else in the habitable world is land not owned by someone?

I also heard someone burbling that because the land would be on two different titles development over the boundaries of the pieces could not happen because planning rules would not permit it.

Again... seriously? Planning rules are only ever guidelines and there will always be exceptions.

Sadly, I think that the opposing submissions to the proposed council transfer demonstrate firstly a clear lack of trust that Māori will fail to "do the right thing".

I'm just flabbergasted. It has taken nearly 180 years for Māori to begin to find something to trust in how Pākehā have administered the cultural divide.

Here is a case where nobody loses, the community gains, honour is restored on all sides but it is opposed by some who appear, through ignorance or lack of compassion, to have no generosity in their hearts; no ability to see that here is an acceptable solution to righting an even greater wrong.

I hope our current councillors stick by their original brave decision to take a positive step forward into a new future.

Buddy Mikaere is an historian, environmentalist, resource consents consultant and Tauranga Moana iwi representative with a wide variety of interests across the Mount Maunganui and Tauranga community. He serves on various Council committees.