By deed dated 30 September 1838, Reverend A N Brown who was acting on behalf of the Church Mission Society purported to purchase land at Tauranga including Otamataha from tangata whenua. That transaction has never been accepted by tangata whenua as a sale of the land to the Church Mission Society. The Church Mission Society was awarded the land including Otamataha by Crown Grant in 1852.
On 28 September 1896, the residue of that land including Otamataha was transferred by the Church Mission Society to the New Zealand Mission Trust Board (the Board), a body incorporated under the Religious, Charitable, and Educational Trust Boards Incorporation Act 1884 (now the Charitable Trusts Act 1957) which held the assets of the Board on trusts for the spiritual benefit and spiritual instruction of Maori people in the North Island of New Zealand or failing that, the evangelisation of heathen races in any part of the world:
By deed dated 20 September 1998, the then trustees of the Board, in recognition of the manner and process by which the land was acquired from tangata whenua, resigned as trustees with respect to the remaining land and property of the Board in Tauranga including Otamataha and were replaced by new trustees representing the hapū of Ngati Tapu and Ngaitamarawaho (the new trustees):
The Waitangi Tribunal in its 2004 report Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims, after considering the manner in which a Crown Grant for the land including Otamataha was awarded to the Church Mission Society in 1852, concluded at page 218:
“we find that Godfrey failed to ascertain and acknowledge the conditional nature of the transactions under Maori customary law and that he wrongly concluded that the CMS had fully and fairly purchased the whole of the area. The Crown, in accepting Godfrey’s recommendation and finally awarding the CMS a Crown grant for the whole area, was therefore in breach of the Treaty principle of active protection.”
Despite this conclusion, section 6(4A)(a) of the Treaty of Waitangi Act 1975 prevents the Waitangi Tribunal from making any recommendation affecting the future ownership of Otamataha. The new trustees wish to hold the residue of that land and the other property transferred to their control by the deed dated 20 September 1998 referred to in recital (5) of this preamble, on trusts which are for the benefit of the hapū of Ngati Tapu and Ngaitamarawaho, rather than on the trusts referred to in recital (4) of this preamble. For that purpose, the new trustees wish to replace those existing trusts with a new trust deed.
The board was originally composed of Anglican Church appointees, but since 1998 the trustees have been appointed by the hapū of Ngāti Tapu and Ngaitamarawaho. The trustees believe the 1896 trust and its deed are no longer appropriate, and have created the new Otamataha Trust, the beneficiaries of which are the hapū of Ngāti Tapu and Ngaitamarawaho.