The battle for Auckland

Ngati Paoa whanau perform a karakia on the summit of Maungawhau Mt Eden. Picture / Kenny Rodger

The crisp morning air of Auckland's Okahu Bay hums with school holiday visitors as Lou Paul (Paora Kawharu) treads the sand in the footsteps of his father, grandfather and great-grandfather.

He's half expecting trouble. Above the beach on Tamaki Drive it arrives in two cars. A group of young men get out, cross the road and advance to the line of pohutukawa.

Flanked by his son Leon, Hone Edwards and Amatao Te Akarana-Rewi (Dan Davis), Paul keeps walking towards the Herald photographer. The young men watch with agitation, then return to their cars and leave.

It's a small victory. Here on Ngati Whatua home turf, Paul is satisfied he's made a statement for his tribe Te Taou and their claim to this land.

"We just want recognition of who we are and have always been."

Thick winter fog smothers most of the city a few days earlier as Glen Tupuhi and whanau gather at the crater rim of Maungawhau (Mt Eden) for a karakia. They are Ngati Paoa and sick and tired of hearing only the name Ngati Whatua associated with Auckland and this mountain.

"Our footprints are all over this whenua [ground]," says Tupuhi, looking across the shrouded city to the summit of North Head poking through the mist.

"The photo here is going to be controversial because it's deep into the Tamaki isthmus and saying: 'No, we're here'."

The 2006 battle for Auckland has begun. This time the fight is not muskets versus spears as it was in the 1820s when Hongi Hika of Ngapuhi swept down from the north and routed the Auckland tribes.

Today the weapons are words - in voluminous submissions and historical reports - wielded by lawyers and historians for hire.

But as various groups marshal their paper armaments around boardroom tables, the battle is just as unbalanced because the Crown has already chosen a winner - Ngati Whatua o Orakei.

After three years of negotiations excluding all other tribes, the Office of Treaty Settlements has reached an agreement in principle to give back prime Auckland real estate to Ngati Whatua.

The deal includes $10 million cash, all the mountains and first right of refusal of all Crown properties put up for sale in the Auckland isthmus, $80 million of naval housing land in Devonport and first right of refusal on a further $90 million of North Shore naval land.

Other tribes with a history in Auckland - including Ngati Paoa and the other Marutuahu tribes (Ngati Maru, Ngati Whanaunga and Ngati Tamatera), Ngai Tai, Te Taou, Te Kawerau a Maki and Waikato - are not amused. Especially as they have just three months to make a case for "overlapping interests".

Emotions run high.

"We have a term to describe them [Ngati Whatua] and this precisely describes them," says Hauraki Maori Trust Board trustee Harry Mikaere. "The name would be kupapa."

That can mean "neutral in a conflict", but today the translation is "traitor" - a reference to Maori who sided with the colonial forces in the New Zealand Wars.

The Hauraki Trust, Te Kawerau a Maki and Waikato are joining as the Tainui Waka Alliance to protest to the Government.

"The rewriting of the history of Tamaki Makaurau [Auckland] will be brought to an end," says Mikaere.

Despite the Tainui Waka bravado that the Ngati Whatua deal will be substantially altered before it becomes a deed of settlement, history is indeed a major casualty of this conflict.

Not only is it recast and manipulated to suit an outcome, history can also be hidden by our Official Information Act.

In 2003, Russell McVeagh lawyer Paul Majurey, also of Marutuahu whakapapa, asked for access to the reports by historian Bruce Stirling, who Ngati Whatua had commissioned to support its Auckland claims.

The Office of the Ombudsman turned down the request, saying its release would "have adversely affected the relationship of trust" in the negotiations. History is commercially sensitive.

Eighteen months later Majurey, representing Marutuahu and Hauraki iwi, was able to get some of Stirling's history released, but sections on Maori customary claims were blacked out.

Why the secrecy? Office of Treaty Settlements director Paul James: "It's important negotiations are confidential to build that confidence between two parties so they can get to agreement."

Yes, but surely the historical account should be transparent at all times?

"In part that [history] is negotiated as well, and agreed between the Crown and Ngati Whatua - so again that's changing [during the process]."

Post-modern theorists will be celebrating - history is not fact, but secret negotiation and tacit agreement. But a more disturbing conclusion is the history that eventually emerges here may not be just biased, but patently wrong.

The history the other tribes most object to is the claim that Ngati Whatua has mana whenua over Auckland, in particular, the Tamaki isthmus.

The exclusive, paramount status is reflected in "Attachment H" of the agreement, which gives the tribe first right of refusal to buy all Crown land that comes up for sale in an area that spreads from New Lynn in the west to Mission Bay in the east.

The Office of Treaty Settlements has seven isthmus properties (worth about $3 million) already "land banked" for Ngati Whatua. "There are always overlapping claims," says Settlements' Paul James. "But we are talking with a group - Ngati Whatua - who are themselves asserting a predominant interest and our historical research gives us a degree of confidence about the area [Attachment H]. We think Ngati Whatua do have that predominant interest."

But how much research has been done by James' department? Last month Te Taou applied to the Waitangi Tribunal for an urgent hearing of the tribe's grievances. Counsel for the Crown, David Soper, responded: "As regards historical claims, the Crown has not undertaken any comprehensive research of issues arising in the Auckland region such as would be necessary for a tribunal inquiry."

Te Runanga O Te Taou chief executive Lou Paul was flabbergasted.

This month he wrote to Settlements Minister Mark Burton: "Minister, are you aware of the possible repercussions and how serious the current actions of the Crown will be viewed by many Maori and other New Zealanders alike in the future by blatantly attempting to railroad through a settlement with one family who are now, in Te Taou's view, squatting on the land of the original autonomous iwi of Te Taou, who by undisputed conquest and occupation, were the undisputed owners of lands at Orakei and other areas?"

Te Taou's petition reflects the dual pathways to resolving Treaty claims - the traditional, where claimants make cases in an open forum before Waitangi Tribunal members, who then make a decision; and the fast track, where Settlements negotiates in secret with a group it believes has a legitimate grievance.

The problem for Te Taou is that once direct negotiations begin for a particular area, tribunal claims for the same area go to the back of a very long queue.

Tainui chairman Tuku Morgan is another who is unimpressed with the Crown's lack of historical research.

"One of the serious omissions is around Te Wherowhero, the recognised protector of Auckland. Clearly the reason why Ngati Whatua are in Orakei is because they came under his protection - that is a historical fact."

Morgan is referring to the first Maori king who enabled Ngati Whatua to return to Auckland around 1835 after the tribe had been driven out by Ngapuhi in 1825. For a decade Auckland was largely deserted by Maori, who had retreated from Ngapuhi's superior firepower to the Waikato and the Kaipara.

Morgan is particularly concerned about Ngati Whatua being handed governance of Maungikiekie (One Tree Hill) and other wahi tapu mountains on the isthmus, which he says belong to Tainui iwi. He describes the agreement in principle with Ngati Whatua as "a complete denial of our own mana over tracts of Auckland".

Chief executive Te Warena Taua of Te Kawerau a Maki Trust points out when Ngati Whatua returned to Auckland in the 1830s, some lived at Cornwallis on land gifted to them by his Waitakere-based tribe.

"They [Ngati Whatua] are basing their mana whenua interests on the fact that their tupuna sold those lands [to settlers and the Crown]."

But in his view the land wasn't Ngati Whatua's to sell. "By greed and by theft they sold our land with no opportunity for redress."

While mana is literally being trampled over, and perhaps into, the ground in this process, the phrase itself is also dubious. "The term mana whenua does not exist," says historian Michael Belgrave. "It's a creation of the land court period [1860s] and became very fashionable in the last two decades. It has absolutely no currency in describing [Maori] custom."

The Waitangi Tribunal also takes a dim view of the trend, noting in a recent decision that it has received a steady stream of "mana whenua reports, each written to emphasise the claims of a particular iwi, hapu or whanau and (if only by omission) to diminish the claims of others".

Not surprisingly, Stirling's historical report (now available under the Official Information Act) favours Ngati Whatua. Referencing a Sir Hugh Kawharu paper, Stirling talks about "the origins of Ngati Whatua's extensive and undisputed land rights in Tamaki Makaurau" and how the tribe "successfully resisted Ngati Paoa's attempts to expand into Ngati Whatua's lands, sealing a peace with them with a tuku rangitira (gift of land) in Eastern Tamaki".

The Weekend Herald was refused interviews by Stirling and Ngati Whatua o Orakei Maori Trust Board chairman Sir Hugh Kawharu to discuss their historical interpretation. Sir Hugh did, however, provide a statement. "Ngati Whatua's positive working relationship with Tainui, Ngati Paoa and Taitokerau over the past 10 years in a number of Auckland governance bodies point to positive working relationships in the future."

He says Ngati Whatua is secure in its history in the Tamaki isthmus. "It is known and acknowledged in Maori terms. It is well recorded in written records."

The Marutuahu Confederation and Hauraki Maori Trust Board beg to differ. Shut out of the Crown negotiations, the organisations commissioned historians Michael Belgrave, Grant Young and Anna Deason to challenge what they regard as the one-tribe-on-the-isthmus myth. The 576-page report was delivered to the Office of Treaty Settlements in April.

Tikapa Moana [Hauraki Gulf] and Auckland's Tribal Cross Currents paints a very different history of Auckland - one where several tribes, including the four Marutuahu iwi and Ngai Tai, co-exist with Ngati Whatua.

It provides strong evidence of land within the confines of Attachment H - at St Georges Bay and Mechanics Bay - being set aside as reserves for "the Thames natives" (Marutuahu iwi).

The report also outlines numerous other Marutuahu claims on the isthmus including Orakei and Maungawhau, and ridicules the idea that Ngati Paoa's extensive 1820 settlement on the western side of the Tamaki estuary was the result of a gift by Ngati Whatua.

Cross Currents explains the divergent narratives by focusing on the water rather than the land as the defining feature of the tribes' relationship with the isthmus.

Ngati Whatua looked to the Manukau and the Kaipara in the north and the west while Marutuahu looked to the Waitemata and Hauraki in the south and east.

"These tribes appeared to speak of the same land but faced different directions and produced vastly different accounts."

On the banks of the Tamaki estuary near Panmure and Waipuna, Glen Tupuhi and whanau don't need a historical report to tell them their people were here at Mokoia pa and Mauinaina.

"The ahi kaa of Ngati Paoa has never gone out. The fires have never gone out. There are families still living here. We descend from families that were living here."

But while other iwi assert their Auckland presence, Ngati Whatua marches on. Most of its special status derives from the 1860s Native Land Court hearings which were an effort by the Crown to sort out a mess of pre- and post-1840 land transactions.

Around 1840 the Crown is hell-bent on acquiring land in Auckland because that's where it wants to set up the capital city. Ngati Whatua, Te Taou, Ngati Paoa and the other Marutuahu iwi are also re-establishing themselves in Auckland after a decade in exile following the Ngapuhi raids.

As Stirling points out, Ngati Whatua at this time is a considerably decimated tribe with some reports saying they number just 800 with only 250 warriors in 1841.

But Ngati Whatua survives by forming a close alliance with the fledgling government and by gifting or selling vast tracts of land to the Crown in exchange for protection. The problem with these transactions, it seems, is that much of the land isn't necessarily Ngati Whatua's to sell.

"It's a real problem for the Crown in terms of buying anything at all," says Belgrave. "As soon as they got hold of a piece of land, somebody else came knocking on the door saying, 'Why are you buying our land?' "

The point where things go horribly wrong for Ngati Paoa/Marutuahu and Te Taou is in the 1879 Orakei hearings and the decision of Judge Francis Dart Fenton, who finds in favour of Ngati Whatua. The hearings are to determine which Maori are entitled to live at Orakei and are contested by many iwi.

As the Belgrave report shows, claims asserted by Te Taou and Marutuahu witnesses were overlapping, complicated and in instances difficult to comprehend - not unlike the situation today. "While the court attempted to impose its order on this chaos, it is only convincing when the evidence presented is ignored."

History repeats. Just as Judge Fenton ordained Ngati Whatua privileged status to suit the Crown's purpose, so too the Office of Treaty Settlements continues the tradition.

"Because there are competing claims you do just have to put a stake in the ground," says Settlements' Paul James. "And then put that up and make it public and generate feedback information on that."

Is this a tactic to quickly resolve Treaty claims? James says no. But he admits the process is part of "the Crown's desire to get to a closure in the treaty settlements process", and a Crown preference to deal with one group at a time and reach a comprehensive settlement.

From a hard-nosed business point of view, a deal with Ngati Whatua for the isthmus makes sense because it absolves the Crown of overlapping claims. Instead of dealing with the Crown, iwi with competing claims would be obliged to negotiate with Ngati Whatua.

But with Te Taou already seeking an urgent hearing of the Waitangi Tribunal and, if that's unsuccessful, likely to challenge the deal in the High Court, Settlements' strategy may backfire. Other iwi are not ruling out a High Court challenge.

It's odd too that Settlements isn't seeking an exclusive deal for the North Shore. While it has set aside $170 million of naval land for Ngati Whatua, James says there is plenty of land available to settle other iwi's claims. Land to the west and to the east of the isthmus (Attachment H) is yet to be included in a settlement.

James says Settlements is preparing to oppose Te Taou's application to the tribunal.

But Lou Paul, who has been fighting this battle for 15 years, is not about to give up. "I care about getting Te Taou put back in its rightful place and I'll do that until the day I die."

Historians don't argue that Te Taou was the conquering tribe of Auckland in the late 1700s when the chief Wahaakiaki defeats the Waiohua people living on the isthmus - some of whom intermarry their conquerors.

But in the 1840s a strange reversal takes place. The conquered and intermarried parts of Te Taou transform into the conquerors by adopting a new tribal name - Ngati Whatua - and by describing Te Taou as a part of that tribe.

The situation is formalised by Judge Fenton's 1879 decision which subsumes Te Taou as a hapu (sub-tribe) of Ngati Whatua. It's an arrangement that makes life easier for the Crown because it can now deal with just one, rather than several competing, iwi - but in the process Te Taou becomes a lost tribe.

The sleight of hapu continues today with Ngati Whatua o Orakei's founding tupuna (ancestor) defined in the Orakei Act 1991 as Tuperiri - a definition that excludes Te Taou.

"We're not Ngati Whatua, we never have been Ngati Whatua - they are an artificially created tribe," says Paul.

Meanwhile Ngati Whatua is obliged to consult all affected hapu - Nga Oho, Te Uringutu and Te Taou - about its agreement with the Crown. But it doesn't take kindly to other history.

In June at a hui at the Ngati Whatua marae on Bastion Pt, Te Taou researcher Alan Clarke was knocked to the ground when he challenged the agreed historical account.

"I said it wasn't Tuperiri who conquered Tamaki, it was Wahaakiaki. As soon as I said that, about five guys came from all different directions."

Te Taou people shielded a bruised and grazed Clarke and led him out of the meeting house. "I got thumped a couple more times."

He drove off as a brawl broke out on the marae.

History shows Tamaki Makaurau - Tamaki of 100 lovers - was an area hotly and constantly contested, sometimes brutally. Little has changed.