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In consequence of applications made from time to time for copies of Judgments delivered in the Compensation Court and
1879.
The application of John Lewthwaite,
The claim of this gentleman is as follows:—
- That early in the year 1841 I purchased several sections of land from the Plymouth Company of New Zealand, and amongst them there were four sections of land in the Waitara district, numbered respectively on the surveyor's plan 434, 432, 451, and 360, each containing 50 acres, together with two sections situated in the
Mangoraka district, also containing 50 acres each.- That in March of the same year I left England for the purpose of selecting and occupying the said sections of land.
- That early in 1842 I selected the said sections and held quiet possession of the same until
Captain Fitzroy , as Governor, paid a visit toNew Plymouth , ignored the award ofMr. Commissioner Spain , and gave notice to all who held lands in the aforesaid districts that they were trespassers upon the said lands.- That not being able to make use of these lands, I left the colony for England in 1845.
- That in 1847 the
New Zealand Company awarded compensation to the resident and absentee land owners who had been unable to possess their lands to that date.- That on my return to the colony in 1854 the committee appointed to settle this compensation awarded me resident or preferential scrip to the amount of 75 acres for each allotment.
- That I still hold this scrip, never having had an opportunity of exercising it upon available land such as it purported to secure.
- That the Land Order or Scrip Act, 1858, purporting to deal equitably with these claims, omits to recognise this preferential scrip, and also to provide for claimants repossessing their original sections where no interference is made with any general scheme of land settlement.
- That in addition to the several sections to which I am entitled, I beg also to claim 1,000 acres as compensation for non-possession of my original sections to the present time, as the market value of each Waitara section being in 1842 £300, would now amount to £3,000, and that of each
Mangoraka section being then value £200, would now amount to £2,000, or altogether £16,000.- That having waited nearly twenty-five years for these lands, in the expectation of settling my family upon them permanently, I have the confidence to hope that I shall be awarded the full amount of my claim.
"Jno.Lewthwaite ."
The circumstances of this case, admitted for the purpose of deciding the legal questions, are as follows:—
In 1841, the claimant purchased from the Plymouth Company of New Zealand, orders for, or contracts for, the purchase of sections of land in the settlement of xi. Vict., cap. 112) by which the company was authorised upon the terms and in manner therein mentioned to relinquish their undertaking, and surrender to Her Majesty all their claims and title to land in the Colony; and on notice being given by the company of their intention to exercise the power thus conferred, all such lands were to become demesne lands of the Crown, subject, nevertheless, to any contract which should be then subsisting in regard to any of such lands. On the 4th of May, 1849, an agreement was entered into between the
"To enable resident purchasers to select the land to be given for the compensation hereinafter mentioned, the company will, after providing for the existing claims of purchasers, offer for the purpose the land already at its disposal in this district, as well as such districts as may hereafter be purchased by the Government on its account in the settlement of
New Plymouth , or in immediate connexion therewith."That resident purchasers shall be declared entitled to receive, as the maximum of compensation, 75 acres of land for every 50 acres of land purchased; the amount of such compensation in each case to be determined on its individual merits with reference to any circumstances which may distinguish it from any other purchases.
"That such of the resident purchasers as received land in exchange under the arrangement of Governor Fitzroy shall likewise be declared entitled to compensation; but, in assessing the amount thereof, regard shall be had to the amount of land already secured to them under that arrangement, and to any other circumstances which may distinguish these cases from those of the other purchasers.
"That for the purposes of this arrangement it is understood that the term 'resident purchaser' shall apply to all parties holders of land in
New Plymouth , derivative as well as original, now actually resident in the Colony of New Zealand."That this arrangement shall extend to land purchasers, original and derivative, formerly resident but now absent from the Colony, whenever such purchasers shall return."
Subsequently the company gave notice that they were ready to surrender their charters to Her Majesty; whereupon, by virtue of the before-mentioned Act, all claim and title to the lands of the company ceased and determined; and all such lands became vested in Her Majesty as demesne lands of the Crown, subject, nevertheless, to any contracts which were then subsisting in regard to any of the said lands.
In 1851, an Ordinance was passed by the New Zealand Legislature called The
The Constitution Act then followed, empowering the General Assembly to legislate for the Colony of New Zealand.
In 1854, in pursuance of the terms of compromise, there was awarded to the claimant by Commissioners appointed under the authority of the Ordinance, resident preferential scrip to the amount of 75 acres for each allotment of which he had been deprived.
In 1856, an Act was passed by the General Assembly called The Land Orders and Scrip Act, 1856, by which provision was made for defining and settling the right of holders of land orders and land scrip.
By The Land Orders and Scrip Act, 1858, this Act was repealed, and it was enacted that within the Province of should be declared open for purchase (except the Hua village site), one acre of town land or 37½ acres of suburban land or 75
The land orders and scrip in respect of which
Upon these facts the claimant argues that either he is entitled to select land, by virtue of his orders, out of the blocks of land which have come into possession of the Crown under the operation of The New Zealand Settlements Acts; or, if such right does not exist, that he is entitled to compensation under the provisions of such Acts for the deprivation thereof.
The agent for the Crown refers to The Land Orders and Scrip Act, 1858, and argues that whatever the claimant's rights previously were, they have been dealt with and definitively provided for in that Act; and that if he has no rights under that Act which would come under the category of a title, interest or claim to any land taken under the New Zealand Settlements Act, 1863, he has no estate in land for the taking of which the Court can grant him compensation.
"Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."
And he argues:—(1.) That if The Land Orders and Scrip Act or The New Zealand Settlements Act interferes with the rights stated to have been secured to him by the before-mentioned Imperial statute, under the operation of which the land of the company became vested in Her Majesty, subject to the contracts which affected them, these Acts are, i.e. by a Private Act
The case will then divide itself into three heads: —
I. It appears to the Court that the consideration of
demesne lands of the Crown, when the property of the company passed to Her Majesty, although the terms of compromise did extend his power to "districts that might thereafter be purchased "—from whom not being expressed.
The Act of 1858 clearly deals with this class of claims, on the supposition that lands in the several Provinces would from time to time be acquired by the Crown from the natives, free of all liabilities and incumbrances, which would be open for purchase in the manner provided by the ordinary land laws.
II. Are these rights destroyed or injured by The New Zealand Settlements Acts?
The New Zealand Settlements Act, 1863, provides that after the Governor in Council shall have constituted any portion of the Colony a District under the Act, and shall have reserved and taken any land within such District for the purposes of settlement, and shall have declared that such land is required for the purposes of the Act, and is subject to the provisions thereof, such land shall be deemed to be Crown land, freed and discharged from all title, interest, or claim of any person whomsoever.
The rights, therefore, which this claimant previously held under The Land Orders and Scrip Act, 1858, were perfectly and absolutely extinguished by this provision, so far as concerns the land included in the several Orders in Council, and whatever rights, if any, he now holds over such lands must be derived afresh from The New Zealand Settlements Act, 1863, or the Act of 1865 continuing and amending it. Do any such rights exist, or can they be conferred under either of these Acts?
It will be necessary to ascertain what directions the Acts give for the appropriation of the lands taken. After the taken lands shall have been cleared from all incumbrances created by the rights which loyal owners may. have under sections 9 and 10 of the Amendment Act of 1865, the 16th section of the Act of 1863, and the 17th section of the Act of 1865, empower and direct the Governor to set apart towns, farms, and land for persons subject to certain conditions of military or police service, and after the performance of such conditions to make grants of their several allotments to the persons settled thereupon. The 17th section empowers the Governor in Council, after setting apart land for the above-mentioned military or police services, to cause towns to be surveyed and laid out, and also suburban and rural allotments; and the 18th section then provides that such town, suburban and rural lands, shall be let, sold, or occupied, and disposed of for such prices, in such manner, and for such purposes, upon such terms, and subject to such regulations as the Governor in Council should from time to time prescribe for that purpose; and the 19th section the payment of any compensation which might be payable under the Act.
It appears, therefore, that it was the intention of the Legislature, at the time of the passing of The New Zealand Settlements Act, 1863, that part of the money to arise from the sale or disposal of confiscated lands (using the term "confiscated " in its vulgar sense) should be devoted to the liquidation of the orders of this Court made in favour of persons entitled to compensation in money, and possibly it might have been competent for the Governor in Council in exercise of the power conferred by the 18th section to have made regulations which would have enabled
The New Zealand Settlements Act Amendment Act, 1865,, repealed the above-quoted 17th, 18th, and 19th clauses of the Act of 1863, and the provision made in lieu of the 17th and 18th sections is contained in the 16th clause of the Amendment Act, and is as follows:—
"The order and manner in which land shall be laid out for sale and sold under the provisions of the said Act shall be in the discretion of the Governor, who shall have power to cause such land or any part thereof to be laid out for sale, and sold from time to time in such manner, for such consideration, and in such allotments, whether town, suburban, or rural, or otherwise, as he shall think fit, and subject to such regulations as he shall, with the advice of his
Executive Council from time to time prescribe in that behalf. Provided that no land shall be sold except for cash, nor at a less rate than ten shillings per acre."
We apprehend that the proviso to this clause would now prevent the Governor from making any regulations with reference to the disposal of surplus lands acquired under the Act of 1863, which would let in the exercise of these land orders; but whether such regulations could be made or not is a question of no moment, as it has not been made to appear to the Court that regulations of any sort have been made under this Act. It is, therefore, in the judgment of the Court, quite clear that there exists no provision which
III. We come now to the question, Can compensation be ordered by this Court for such destruction of his rights?
The Act of 1863, section 5, enacts that compensation shall be granted to all persons who have any title, interest, or claim, to any land taken under the Act; and section 7 provides that such compensation shall be granted according to the nature of the title, interest, or claim of the person requiring compensation, and according to the value thereof. The Amendment Act of 1865 is more particular, and enacts that every claim for compensation under the Act of 1863 shall specify the name of the claimant, the interest in respect whereof the claim is made, and as nearly as may be the extent and particulars of land affected thereby, and the amount claimed as compensation; and further provides, in section 12, that every order of the Court shall be made in writing, and shall specify and be accompanied with such plans and particulars as shall be prescribed by regulations to be made by the Governor in Council.
There can, therefore, be no doubt whatever that the Legislature contemplated only the compensation of persons having titles, estates, or claims in land capable of specification and description, and of which plans might be made. Now, as we have already determined that
The Oakura Block is part of the Middle
The claims for compensation which have been referred to this Court by the Colonial Secretary are very numerous, and come from many distant parts of the Colony; but they may be collected into the following heads:—1,
(1). The claims from the
Previously to the great i.e., that a tribe or association of persons held possession of a certain tract of country until expelled from it by superior power, and that on such expulsion, if the invaders settled upon the evacuated territory, it remained theirs until they in their turn had to yield it to others. It is even very doubtful whether the relation of persons to the land was, as a rule, what in the English sense of the term could be styled ownership. Land, with its places of strength, concealment, and
We do not think that it can reasonably be maintained that the British Government came to this Colony to improve Maori titles, or to reinstate persons in possessions from which they had been expelled before 1840, or which they had voluntarily abandoned previously to that time. Having found it absolutely necessary to fix some point of time at which the titles, as far as this Court is concerned, must be regarded as settled, we have decided that that point of time must be the establishment of the British Government in 1840, and all persons who are proved to have been the actual owners or possessors of land at that time, must (with their successors) be regarded as the owners or possessors of those lands now, except in cases where changes of ownership or possession have subsequently taken place, with the consent, expressed or tacit, of the Government, or without its actual interference to prevent these changes.
Compelled by absolute necessity to lay down a rule for our guidance as to the time and circumstances when the ownership or title of expelled owners could rightly be regarded as having terminated, we: can find no other rule to establish than the one now expressed, and we have endeavoured to adhere to it as a fixed rule for our enquiries under The New Zealand Settlements Acts, where the questions at issue are matters purely between the Crown and a portion of its Maori subjects. Of course the rule cannot be so strictly applied in the Native Lands Court, where the questions to be tried are rights between the Maoris inter se, but even in that Court the rale is adhered to, except in rare instances. If greater latitude is allowed, and the date of ownership is permitted to be variable, the confusion will be such as to render any solution of this great question, upon any principle of justice, perfectly hopeless. Thus, we know that there are claims preferred by the
We find, then, that according to the evidence, that branch of the
These claims amount in number to 216, and the persons claiming belong to Ngamahanga tribe. Like the Chatham Islanders, those who survived the
The claims from persons now residing in
This class of claimants amounts in number to 137. They also abandoned their possessions on this block, and fled South from the
The claimants from the North are persons who were taken prisoners in war by the
The claims in the Waitara South Block of Absentee Natives.
In the argument of the Crown Agent in opposition to these claims, three points were mainly relied upon:—
With reference to the first objection, that
Nor do we see any force in the objection raised by the Crown Agent that what
The other objection raised by the Crown Agent—that one Government is not bound by the acts of its predecessors—appears to the Court to be fallacious. This Court is not the Government, and in no way represents the Government, and is in fact constituted to decide between the Crown and a portion of its subjects. The previous acts of the Crown may now very fairly be used as evidence by adverse claimants. Moreover we doubt very much whether the doctrine expressed is a good doctrine, even in politics. Certainly in courts of law, as concerns matters of right affecting the Crown, it must be held to be a bad doctrine.
The Court, therefore, sees no reason for departing from the rule which was acted upon in the case of the Oakura block. We exclude from compensation all persons who, having been expelled by force from this block of land previously to the year 1840, have never re-occupied, excepting. such of them as have been recognised as owners by the Government or its officers.
We find the block called Waitara South divided into two distinct portions, the
The only absentee person whom we find to have been distinctly recognised by the Government in the Waitara portion is Ropoama Te One. But, in addition, we sanction the claim of Riwai Te Ahu and Pin Kawau over this block, although they have never actually re-possessed themselves of any portion of the land since the expulsion of the tribe by the Waikatos. We think this exception may justly be made, because their absence from Maori kaingas was caused by
A considerable number of claimants now absentee have also maintained their right by having returned and cultivated the soil between 1840 and the present time. These persons will be admitted as resident owners, and will appear amongst that class.
The claims disallowed for non-appearance and other similar causes amount to 149.
The claims disallowed for non-possession, or occupation for an insufficient time to warrant the belief in a domiciliary intention, are 238.
This is a portion, of the Ngatiruanui Coast Block, taken under the authority of The New Zealand Settlements Act, 1863, by an Order in Council dated 2nd September, 1865. The Crown Agent, on behalf of the Colonial Secretary, having abandoned the right of the Crown to take that portion of the Ngatiruanui Coast Block which lies to the east of the
The claims referred to this Court, purporting to relate to land between
The admitted claims are divided into two classes—(1) claims established by proof of actual residence and cultivation up to within a recent period: these are 40 in number;(2) claims of persons long absent and settled elsewhere, but who themselves, or whose parents, or near relatives, were in the year 1840 actual owners and possessors of the land the subject of claim: these are 79 in number. Ancestral claims where neither the claimant nor his parents have ever occupied as seitled residents are rejected.
The evidence before the Court shows that the land comprised within the boundaries of this portion of the Ngatiruanui Coast Block belonged to the Ngaruahine, Tangahoe,
The evidence before the Court supplies the following data:— The area of that portion of the Ngatiruanui Coast Block, which is the subject of the present investigation, is computed to be 428,000 acres. The open land and available bush, extending five miles and a half inland from the coast line, is estimated at 131,720 acres, leaving as bush land unavailable 296,280 acres. The persons interested in this land as residents number 997. Of these, 957 have been engaged in rebellion since January, 1863, and 40 are residents whose claims to compensation are admitted, the Crown having elected to give the claimants land in lieu of money as compensation for their claims.
It is ordered by the Court that the claimants whose names are set down in the schedule appended hereto, and marked A, are entitled to receive four thousand eight hundred (4,800) acres of open and available land, and eleven thousand two hundred (11,200) acres of bush land, being at the rate of one hundred and twenty (120) acres each of open and available land, and at the rate of two hundred and eighty (280) acres each of bush land. The open and available land to be of value equal to the average value of land lying within five miles and a half inland of the coast line between
It is further ordered that the claimants whose names are set down in the schedule appended hereto, and marked B, are entitled to receive three hundred and ninety-five (395) acres of open and available land, and eight hundred and sixty-nine (869) acres of bush land, being at the rate of five (5) acres each of available and eleven (11) acres each of bush land. The open and available land and the bush land to be of the same value respectively as prescribed in the case of the claimants in Schedule A.
And it is further ordered that the land hereby awarded to the claimants in Schedule A and to the claimants in Schedule B respectively shall be selected by the claimants and by the agents for the Crown in conformity with the ninth clause of the Rules and Regulations for the Practice and Procedure of the Compensation Courts, made by an Order in Council, dated 16th June, 1866, in blocks of such extent and in such localities available for the purpose as may be desired by the claimants, with the view of locating together members of the same tribe, and of including, when practicable, land which they have previously occupied and cultivated, such selection being subject to the final award of the Court.
This grant was made on the 25th day of February, 1863, and assured to Ihaka Takaanini Te Tihi, his heirs, and assigns, an estate near
The grantee died in the month of February, 1864, seized of these lands, without having made a valid disposal thereof by will or otherwise, leaving three children born in wedlock surviving him, named Erina, Te Wirihana, and
This is a claim by
The proofs for the plaintiff's case rest on the evidence of persons of the Ngatipoataniwha and Ngatitaihawa tribes and their relatives and co-claimants, and consist mainly of ancient occupancy, chiefly before the time of the
But there appears as an opponent and counter claimant, the Crown, whose case must be carefully considered. The learned counsel for the Crown places before the Court a copy of a deed of conveyance dated in 1841, executed by chiefs of the habendum part, the phrase of description runs thus: "From the entrance of noscitur a sociis, and the words which follow, and which are clearly pure surplusage, force to the conclusion that the several large islands on the far side of the ship channel, of which
The other muniment put in by
The Court, then, is of opinion that the real origin of the Crown's title has not been shown, and that if the case for the Crown rested simply on the documentary evidence, it would scarcely avail to upset the claimants, although their case is undoubtedly weaker than most cases that come under our consideration. But the facts disclosed on the examination of the plaintiffs' witnesses, and in the direct testimony
It appears that Messrs.
Although, therefore, the Court is unable to discover the origin of the Crown's title, or by what means the native title has been extinguished, yet we are of opinion that the case made out by the claimants is altogether deficient of those elements of strength which would justify us in disturbing the Crown in its possession. To eject a person from his possession, it is not sufficient to show the weakness of his title, but a better must be displayed, and we think that this has not been done. Judgment must therefore go against the claimants.
It may be well, before concluding, briefly to notice one or two matters which have arisen in the course of this protracted trial.
In the first place, the doctrine set up by the learned counsel for the Crown that the proof of "holding'' or the customary usage under which a native claim must be established must be, as of the year 1865, the date of the passing of our Act, cannot, in the judgment of tit res magis valeat quam pereat." The word "held," although, grammatically speaking, a participle indicating time, must be construed rather as a word of description, and not limited to any particular moment. The law of construction in cases of this sort is clearly laid down by v. Hall, 1 Barn. and Cress. 123: "The meaning of particular words in Acts of Parliament, as well as other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be obtained. Thus, the inhabitants of any county, etc., taking that word in its strict or in its popular sense, are those persons only who have their dwelling therein. But the object of the statute being to raise a fund for the repair of bridges by the taxation of persons, * * * the word inhabitant has been held to include all the occupiers, although actually living in some other county." Thus, the object of The Native Land Act being to determine the native titles to land in New Zealand, and to establish recognised tenures in lieu thereof, we must so construe the Act as to give as much effect as possible to the clear intentions of the legislature; and if the construction contended for were allowed to prevail, the Act would very largely fail of effect.
"Questions of pedigree form the second exception to the general rule rejecting hearsay evidence. This exception has been recognised on the ground of necessity; for as, in enquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial, and were known but to few persons, it is obvious that the strict enforcement of the ordinary rules of evidence in cases of this nature would frequently occasion a grievous failure of justice. Courts of law have, therefore, so far relaxed these rules in Necessitas non habet legem is a legal maxim as well as a popular proverb.
The Court, before concluding, feels that it is in duty called upon to notice the non-production of the deeds for which the trial has been so frequently adjourned. The position of the learned counsel for the Crown has been, if possible, one of greater embarrassment than that of the Court itself, although, of course, his responsibility is less. The copies produced are in no legal sense records, but simply copies of deeds. If they are set up as records, we would say, as the scire facias, "If they are records, of what Court are they records?"—See Bacon's Ab. Tit. Record. These copies were admitted simply on the ground that they afforded the best evidence that could be obtained, the originals being (if in existence) in the possession of an authority beyond the reach of any power conferred upon the Court. It is not for the Court to conjecture why these deeds have not been forthcoming, and Mr! Gillies was silent on the subject. It is necessary to allude to this question, for the admission of copies in this trial must not be construed into a matter of course precedent. It will always be necessary to show that attempts have been made to obtain the best evidence, before the Court will receive the second best. It must also be apparent that the non-production of the originals may often operate injuriously to the Crown's interest; for a native might, and very likely would, deny his signature when viewing the copy, which he might frankly admit if placed before him in the original instrument. It may be well to add that if the muniments of the Crown estates were deposited in some place where they would be accessible to suitors or claimants, or intending claimants and their legal advisers, we think that many cases of the character of the one just decided would be kept back, and would not be brought into Court. For example, there can be no question that if the counsel for the natives who claimed
The issues upon which it has been arranged that the Court should give an interlocutory decision are as follows:—
Upon the first and last issue the Court can give a clear and distinct opinion, but the answers to the other issues depend entirely upon the tracing of persons and their relationships, which cannot be done at this stage of the proceedings, and must await further evidence. The general opinion, however, which the Court feels itself able to give will render this subsequent proceeding a matter of no difficulty, and indeed will in all probability so far indicate the views of the Court as to render further evidence unnecessary, by enabling the parties to arrange between themselves to whom the
As to the first issue, the Court is of opinion that the persons generally styled in the course of this trial "the
The last issue must be answered in the negative. The admission of certain of the
The 2nd, 3rd, 4th, and 5th issues are cognate in character, and cannot (especially the 3rd) be finally decided at present, but the general view of the Court on the facts and principles involved may now be indicated with sufficient clearness to render subsequent proceedings simple. status of the title as fixed in 1849, when the great transactions with
The Court feels that it would be leaving its duty only half discharged, if it failed to notice the character of the deeds purporting to extinguish the native title to this island, which have been produced before it. Whether the deed called the "Ngaitahu Deed" can have any effect whatever in law is not a question upon which it is necessary to pronounce any opinion; but, having been compelled in the course of these proceedings to consider the terms and stipulations in this and other deeds produced, the Court could not fail to be struck with the remarkable reservation by the vendors of all their "pas, residences, cultivations, and burial-places, which were to be marked off by surveys, and remain their own property." This provision has not, according to the evidence, been effectually and finally carried out to the present day, nor has any release been sought for by the Crown. The witness,
Lastly—although as a rule this Court carefully endeavours to avoid following equities, confining itself to creating and dealing with legal estates—it feels that it ought to express its clear opinion that the executor de son tort, yet, as before observed, the evidence clearly shows that the natives believed him to be a duly authorised officer of the Crown, and they acted without question upon his suggestions; and we think that natural equity requires that land to the amount lost by them should be found for them elsewhere by the Government.
This is an application to the Court for a certificate of the title of
The case is one of vast importance, immediately concerning the title of the Crown to nearly the whole of this and other provinces, and raises points of a difficult and conflicting character. And the Court feels that it is scarcely a fit tribunal for the determination of such important legal principles, and such great constitutional questions. But, as a decision must be arrived at, the Court will endeavour so to express its opinion that no doubt can exist as to the grounds of it, and a subsequent application to the Superior Court to reverse the judgment and quash it, if wrong, may be made without any difficulty.
The value and effect of the deed of conveyance to
And before this can be done it will be necessary to enquire into the character given by the legislation of the Imperial Parliament, and
The views of the Imperial Parliament and of the Crown appear to have constantly varied with respect to the nature and extent of the rights and interests possessed by the aborigines in the wild land of New Zealand. At first the Maoris were regarded by the Crown as an independent and organised state, capable of forming a treaty; and a treaty was formed with them on the 16th February, 1840, by which they obtained ' all the rights and privileges of British subjects," and a confirmation and guarantee of "the full, exclusive and undisturbed possession of the lands and estates, forests, fisheries, and other properties which they collectively possessed, so long as they wished and desired to retain the same in possession," and they yielded to the Crown right of pre-emption "over such lands as they might be disposed to alienate," and ceded as well all rights and powers of sovereignty possessed by themselves over their respective territories as sole sovereigns thereof."
The question as to the nature of the rights of the chiefs or the amount of territory over which they extended was not dealt with in this compact. Although there is no doubt that the conditions laid down by Vattel and other writers on international law as necessary to constitute a regular treaty, were not fulfilled in the treaty of Waitangi, yet as it has been acted upon for many years as of sufficient validity, and constitutes in fact the foundation on which the English sovereignty in the Northern Island has been built up, and is now sustained, it must be accepted as a valid treaty, forming part of the law, and it is necessary to enquire what is the interpretation that has been, and is put, by the Crown on it as affecting its own territorial rights and those of the natives.
The Charter of 1840, erecting the colony of New Zealand, empowers the Governor to make and execute in Her Majesty's name and on her behalf, under the public seal of the colony, grants of waste lands to her belonging within the same, "and provides that those Letters Patent should not affect the rights of any Aboriginal natives of the colony, to the actual occupation or enjoyment in their own persons of the lands now actually occupied or enjoyed by such natives."
The idea here seems to have been that the Governor might grant all lands except those actually occupied by natives, and in accordance with this view he was instructed by the Crown in the same year, "to cause a survey to be made of all the land within the colony, and to divide and apportion the whole of the said colony into counties." And Her Majesty declared "it to be her will and pleasure that all the waste and unclaimed lands within the colony belonging to and vested in Her Majesty, which should remain (after making certain reserves) should be sold and disposed of." At this time, then, all the waste lands were held to be in the Crown, with the exception of such land as might be reserved for the uses and in manner specified, and such lands as were actually used by natives.
A statute of 1841 passed by the Government and
Under this statute the whole land of the colony became demesne of the Crown subject to certain or rather uncertain rights in the Maories.
The Royal instructions of 1846, direct that such parts of the island of New Zealand as were or should be owned or lawfully occupied by persons of European birth or origin, should be divided into municipal districts; and with reference to "waste lands of the Crown," provided that charts of the New Zealand islands should be prepared, and especially charts "of all those parts of the said islands over which either the aboriginal natives or the settlers of European birth and origin had established any valid titles, whether of property or occupancy," and natives, either as tribes or as individuals, claiming a property or possessing title, were to send in claims and have them registered, and all lands not so claimed or registered should be considered as vested in Her Majesty, and constituting her demesne lands in right of her Crown within the New Zealand islands; and finally all doubt is removed by the provision that no native claim should be recognised except for "land occupied or used by means of labour expended thereon."
And the 13th chapter contains the following provision, "the conveyance or agreement for the conveyance of any of the lands of or belonging to any of the aboriginal natives, in common as tribes or communities, whether in perpetuity or for any definite period, whether absolutely or conditionally, whether in property, or by way of lease, or occupancy which may be henceforth made, shall not be of any validity or effect, unless the same be so made to or entered into with us our heirs and successors."
The character attached by the English authorities to the wild
The view thus taken by the Imperial Government of the respective rights of the Crown, and of its aboriginal subjects in the territory of the colony, is clear and distinct; but it was objected to by the natives, and was never carried into practice, and in fact could not have been in a peaceful manner.
By the 10 and 11 Vic., c. 112, the several provisions relating to the settlement of the waste lands of the Crown contained in 13th chapter of the said instructions, of 1846, except such as relate to the registration of titles to land, the means of ascertaining the demesne lands of the Crown, the claims of the aboriginal inhabitants to land, and the restrictions on the conveyance of lands belonging to natives, unless to Her Majesty, were suspended in New Minister.
The proceeds of land sales were, amongst other things, to be applied in and about the compensation to be made to the aboriginal inhabitants of New Zealand for the purchase or satisfaction of their claims, right, or interest in the said demesne lands.
14 and 15 Vic., chap. 84, empowers Her Majesty to make, or to authorise the Governor to make, regulations for the disposal of the demesne lands of the Crown in
It thus appears that a gradual change took place in the interpretation put by the English authorities on. the territorial rights of the aborigines, between the years 1846 and 1851; and the Constitution Act clearly contemplates the practical exclusion of land, in which the native interest is still unextinguished, from the category of "Waste Lands." Thus from being considered as the demesne lands of Her Majesty in right of her Crown, subject or not to a certain payment to be made, the unoccupied territory of the colony, in the hands of the aborigines, came to be regarded as their distinct and admitted property, but inalienable to any person other than the Crown. The slight variation of this latter limitation made in after times by the Native Land Act, 1867, need not here be noticed.
At the time of the execution of the Ngaitahu deed the provision in the 13th cap. of the Royal instructions was in full force, as well as the previously cited enactment in the Land Claims Ordinance of 1841. And in addition to those laws which rendered conveyances of
The Ordinance of 1841. and the 15th cap. of the Royal Instructions, render it difficult to find any grounds on which the Ngaitahu deed can be held as valid at the date of its execution, as creating a title in the purchaser. And it is the opinion of the Court that at that time it had no force to operate as a conveyance of the land referred to therein, to the person and in the manner therein expressed.
And here, before going further, it will be necessary to glance at the events which had been taking place all this time, and which have since taken place affecting the block of land in which this claim is situate. By letters patent, dated the twelfth day of February in the fourth year of the reign of Her Majesty, certain persons therein named were constituted a Body Corporate, with perpetual succession and a common seal, by the name of "The
The directors of the
And the before-mentioned Imperial Act of 13 and 14 Vic. cap. 70, enacts—
That neither the thirteenth chapter of the said instructions, dated 23rd December, 1846, nor the said additional instructions of the 27th January, 1849, shall thenceforth apply to the lands described in the schedule annexed to the Act during the period thereinafter provided. The schedule is as follows;—
"All that tract of waste and unappropriated land formerly in the possession of the New Zealand company, situated in the Middle Island of New Zealand, being bounded by the snowy range of hills from Double Corner of the river
Another Act was passed by the Imperial Parliament, in the following year (14 and 15 Vic. cap. 84), making further provision for the lands of the
It appears then that of the two written laws on which
Now, it has been long established that when an Act of Parliament is repealed, it must be considered (except as to the transactions passed and closed) as if it never had existed (Surtees v. Ellison, 9 B., and C, 752). "We are to look," said Lord Tenterden, "at the Stat. 6, Geo. 4, c. 16, (which repealed all previous acts), as if it were the first that had ever been passed on the subject of bankruptcy; so in a criminal case (Rex. v. Mackenzie, P. and R., C.C. 429) where an Act from its passing, repealed a former Act which ousted clergy for a certain offence, and imposed a new penalty on the same offence from and after its passing, it was held that an offence committed before the passing of the new Act, but not tried till after, was not liable to be punished under either of the Statutes, (Dwarris). Mr. Cowlishawadmits this general principle of law, but says that the Ngaitahu transaction was a transaction passed and closed. But the evidence does not sustain this position—on the contrary, we find the agent of the Crown who had adopted the contract, coming down and making first a payment of £500, and then at a subsequent period a further payment of £1000, both being part of the original purchase money of £2,000. And indeed, the learned counsel himself has urged upon the Court the clause reserving the pahs, food places, and residences of the natives, and has asked the Court to remember that this provision, has not, even to the present day, been satisfactorily carried out. The Court inclines to the opinion that these repealed laws cannot now be referred to, but must be regarded, in Lord Tenterden's words, "as if they had never existed." But I do not think it necessary to give a decided opinion on this point, for the Land Claims Ordinance, 1841 still remains, and the judgment of the Court will go on different grounds, so that the point is not one of much importance.
Whatever may be the legislative meaning of the phrase "unappropriated lands," used in the Land Claims Ordinance, 1841, the Court is clearly of opinion that the Ngaitahu deed did not vest any estate in v. McIntosh, and I am very diffident in expressing my mind on the matter, when I know that the Gazette contains the decision of
There is abundant evidence of the existence of a parol agreement by the Ngaitahu tribe, or the majority of them, to sell the block of land to Omnis ratihabitio retrotrahitur et mandato priori æquiparatur. A subsequent ratification has a retrospective effect, and is equivalent to a prior command. "The doctrine Omnis ratihabitio retrotrahitur et mandato æquiparatur is one remarks the Court of Exchequer in a modern case (Bird v. Brown, 4 Exc: 798), intelligent in principle, and easy in its application, when applied to cases of contract. If A, unauthorised by me, makes a contract on my behalf with B, which I afterwards recognise and adopt, there is no difficulty in dealing with it, as having been originally made by authority. B entered into the contract on the understanding that he was dealing with me, and when I afterwards agreed to admit that such was the case B is precisely in the condition in which he meant to be; or if he did not believe A to be acting for me, his condition is not altered by my adoption of the agency, for he may sue A as principal at his option, and has the same equities against me, if I sue, which he would have had against A."
"But the authorities go much further, and show that in some cases, where an act which, if unauthorised, would amount to a
Such being the law as between private individuals, the question arose in Buron v. Denman, 2 Exc. 167, whether it applies likewise where the Crown ratifies the acts of one of its officers, and the majority of the judges presiding at the trial at bar in that case held clearly that it does so. The ratification of the defendant's act by the Minister of State was held equivalent to a prior command, and rendered it an act of State for which the Crown was alone responsible (Parke B. dubitante) and that such defence was open on the general issue.
The contract, then, such as it was, was capable of being legally ratified by the Crown, and I think that the evidence shows that the original parol agreement was adopted, and has been partly performed by the Crown. The question then arises whether the agreement itself was of such a character, and whether the part performance has been sufficient to render powerless the Statute of Frauds. The payment by
It will be convenient to treat together the judicial leaning on this subject, and I will quote from Tudor and White on the leading case, Foxcroft and Lyster.
In this case specific performance of a parol agreement to grant a lease was decreed, notwithstanding the Statute of Frauds, after acts of part-performance on the part of the lessee by pulling down an old house and building new houses according to the terms of the agreement
The final decision was by the Lords, and is in the following terms:—
Die Lunae 7 Aprilis 1701. Upon hearing counsel on this appeal, it was ordered and adjudged by the Lords, that the decretal order of
The remarks in White and Tudor's Leading Cases pertinent to our case are as follows:—
"The Statute of Frauds" observes Lord Redesdale "says that no action or suit shall be maintained on an agreement relating to lands, which is not in writing signed by the party to be charged with it; and yet the Court is in the daily habit of relieving where the party seeking relief has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief. The first case (apparently) was Foxcroft v. Lyster cited 2 Vern 456, and reported in Colles' Parl. Cas. 108.
Payment of part of the consideration money is not an act of part performance so as to take a contract out of the Statute of Frauds. (See Clinan v. Cooke, 1 S and L 40.) Lord Redesdale held it not to be an act of part performance. "It has always" observed his Lordship, "been considered that the payment of money is not to be deemed part performance to take a case out of the statute." (Seagood v. Meale, Prec Ch. 560.)
Lord Redesdale's doctrine is nowuniversally adopted, and it has even been recently laid down that the payment of all the purchase-money will not be considered an act of part performance to take a parol contract out of the Statute of Frauds. (Hughes v. Morris, 2 De Gex. Mac and G. 356.) But admission into possession having unequivocal reference to the contract, has always been considered an act of part performance. The acknowledged possession of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorise an enquiry into the terms, the Court regarding what has been done as a consequence of contract or tenure. Morphett v. Jones, 1 Swanst. 181. Borrett v. Gomeserra, Bumb. 94, &c.
Where the evidence of the parties as to the terms of the contract is in some respects contradictory, specific performance will be decreed, if the Court, by directing inquiries can collect what were the terms about which the parties differ. Thus in Mortimer v. Orchard, 2 Ves. jun. 243, where the plaintiff had built a house, his witness proved an agreement different from that set up by the bill, and the answers stated an agreement different from both. Lord
In Mundy v. Jolliffe, 5 My. & Cr. 177, Lord Cottenham says, Courts of Equity exercise their jurisdiction in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement. Under such circumstances the Court will struggle to prevent such injustice from being effected; and with that object it has, at the hearing, when the plaintiff has failed to establish the precise terms of the agreement, endeavoured to collect, if it can, what the terms of it really were.
It must be always borne in mind that "part performance," to take a case out of the Statute of Frauds, always supposes a complete agreement. There can be no part performance where there is no complete agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement. Per Lord Brougham in Lady Thynne v. Earl of Glengall, 2 H L Cass 158.
The Court then is of opinion, that though the several payments made by
There is only one point remaining to which I desire to advert. Qui sentit commodum sentire debit et onus is the maxim—and the Maori custom is, that the individual must (as regards native land) be bound by his tribe, in their external relations.
The evidences of occupation by the claimant and his ancestors all indicate that the tribe have always regarded this place as a valuable fishery. And
The Court is prepared to hear further evidence as to the terms of the contract for the sale of the Ngaitahu block, and to make orders for their specific performance. In the meantime Judgment for the Crown.
Since writing the above, I have received the Gazette of 1847, which confirms my recollection of the judgment of the Supreme Court, in the case of Mackintosh v. Symonds (not the Queen v. Mackintosh, as I called it).—[
This is a claim to land comprised in the deed of cession, signed by the chiefs of the Ngaitahu tribe, commonly called "Symond's" or the "Otakou Deed," bearing date the 13th July, 1844. The deed purports to cede to (Mackintosh v. Symonds), the land so purchased became vested in Her Majesty; and by Letters Patent under the seal of the Colony, dated the 13th day of April, 1846, it was effectually granted to the
The
By virtue of another Act of Parliament, passed in the same year (1846: 9 and 10 Vic., c 103), and of Royal Letters Patent, bearing date the 23rd day of December, 1846, and Royal Instructions accompanying the same (which Letters Patent and Royal Instructions purport to have been issued by virtue of the provisions of the last-named Act), certain orders and regulations were issued and promulgated in reference (amongst other things) to the dealings with and appropriations of the demesne lands of the Crown within the Colony. These Royal Instructions contained the following provisions:—
14. "No land of and belonging to us in New Zealand shall, by us our heirs, or successors, or by any such Governor-in-Chief or other person on our behalf and on our authority, be alienated, either in perpetuity or for any definite time, either by way of grant, lease, license of occupation, or otherwise, gratuitously, nor except upon, under, and subject to the regulations hereinafter prescribed.
17. "The Governor, or Lieutenant-Governor of any such Province, with the advice of the convenience or enjoyment, in which either the whole population of the Province or any large number of the inhabitants thereof may have a common interest, all of which lands shall be called and be known by the name of Reserved Lands."
By an Act of the Imperial Parliament, passed in the following year (10 and 11 Vic., c. 112), the foregoing provisions were suspended within the Province of New Munster, until the 5th July, 1850, and during such further time as should be directed by Parliament, and that numbered 14 was repealed entirely by Royal Instructions, dated respectively 22nd December, 1847, 13th March, 1848, and 27th January, 1849. This Act provided that:—
"Section 2. All the demesne lands of the Crown in the Province of New Munster, and all the estate and right of Her Majesty therein, or power and authority over the same or any part thereof, should, during the suspension of the said Instructions, be absolutely and entirely vested in the
New Zealand Company , in trust, for the purposes and subject to the provisions thereinafter contained; and during such period all the rights, powers, and authorities of Her Majesty in reference to the same might be exercised and administered by the said Company, subject to the restrictions thereinafter contained."
And it was further provided that if the
And by Section 3 (relied upon by
In or about the year 1845, a number of persons, lay members of the
It was stated by
Parliament made no such further direction as is referred to in the Act 10 and 11 Vic, c. 112, and therefore the Royal Instructions previously mentioned as having been suspended by that Act in the Province of New Munster, revived and came into force again on the 5th July, 1850.
The directors of the
Royal Instructions, dated the 12th August, 1850, after reciting (amongst other things) the existence of these contracts, revoked and determined so much and such part only of the thirteenth chapter of the said instructions as relates to the lands comprised in, or affected by, the aforesaid contracts between the
On the 8th August, 1851, Lord Grey, a Principal Secretary of State, forwarded to Governor Grey a copy of an Act passed by the Imperial Parliament, in consequence of the demise of the
In the year 1852, the Act 15 and 16 Vic., cap. 72, commonly called the Constitution Act, was passed. By this Act, power was given to Her Majesty to make provision, by way of regulations to be contained in any charter to be granted to the
By Letters Patent, made at Westminster on the 13th day of September, 1852, being a new Commission to Governor
Instructions from
It has not been suggested that any action was taken by the General Assembly, altering the legal or equitable status of the land claimed, or its legislative position previously to its being set apart, as alleged, for a
I have thus briefly glanced at the legislation, original and under delegated powers, affecting this land, which has been brought under the notice of the Court by the several counsel, or which I have been able to discover with the limited means of information at the disposal of the Court here. Besides the Act to which I have referred, I can, in the Gazettes and elsewhere, see traces of instructions from Secretaries of State, and correspondence with the
The whole of the pieces of land comprised in this claim are clearly and indisputably at the present time vested in Her Majesty. But their position before this Court is at present various, though originally they were all fixed by Mr. Mantell—then Crown Lands Commissioner—as Native Reserves, by the direction of
Sec. 402 is alleged by the
Sec. 403 and Sec. 404 are sections marked off on the original plan, and in the allotment book, as open for selection. They were never selected, and remained open and without encumbrance to the present day, except, of course, the alleged reservation as a
The other parcel unnumbered is alleged and admitted to be part of the Town Belt; but whether it was ever effectually and legally made a public reserve has not been shown to the Court.
The Native Lands Court has no jurisdiction over demesne lands of the Crown, or granted lands, except under the Act of last session (Native Lands Act., 1867). The provision governing the whole of these proceedings, and creating our jurisdiction, is contained in the 11th clause, which is as follows (so far as concerns our case):—
"11. In the interpretation and construction of the provisions of this Act, the expressions '
"'(5.) Lands appropriated by the Governor for the use or benefit of any aboriginal Natives.'"
And the Act provides that in cases where, under this Act, the Court would not have had jurisdiction, it shall be competent to the Court to inquire into and determine any question affecting any title to, or interest in, any
As to Section 401, there being no objection on the part of any person to the native claim, the judgment of the Court is that a Crown grant of Section 401,
As to secs. 403 and 404, the Counsel for the Crown assents to the claim, but
Colonial Secretary's Office,Auckland ,June 5th, 1855. Sir,—In accordance with the request contained in
Mr. Commissioner Mantell 's letter of the 4th December last, I have the honour to enclose herewith certified plans of Native Reserves atDunedin and Port Chalmers, as enclosed in his letter of the 18th April, 1853, to the Civil Secretary, in order that they may be duly recorded, as approved by His Excellency.I have, etc., (Signed) Andrew Sinclair ,Colonial Secretary. The Acting Commissioner of Crown Lands, Otago .
The Governor in Council recognised and acted upon this engagement; for, in 1865, we find an Order in Council, made under the Native Reserves Acts, appointing primâ facie case has been upset, for the rule is omnia bene et ritê acta præsumuntur donec probetur in contrarium. Moreover, in my judgment, the power given to the Governor by the 11th clause of the Waste Lands Act, 1858, was expressly conferred to enable him to protect the honour of the Crown in cases of this sort. That provision is in the following words:— "And whereas it is proper and expedient that power should be given to the Governor to fulfil engagements heretofore made on behalf of Her Majesty, and also to make Reserves for certain public purposes within the Colony: Be it therefore further enacted that it shall be lawful for the Governor at any time to fulfil and perform any contract, promise, or engagement heretofore made by or on behalf of Her Majesty, and whereof there is evidence in writing, with respect to any allotment or parcel of land within the Colony, and any Crown grant made in pursuance of any such contract, promise, or engagement, shall be valid."
Even if grave doubts had been created by the opponents as to the authority of the Governor to set apart this land for the natives, the Court would still have felt itself compelled to say that this reservation is a contract, promise, or engagement, coming completely within the terms of the Waste Lands Act, 1858, which the Crown is bound to fulfil.
The judgment of the Court therefore is, that a Crown grant of secs. 403 and 404 of the, Town of
As to the unnumbered piece—parcel of the Town Belt—the Superintendent is the possible grantee of this piece of land under the Public Reserves Act; that is to say, that will be his position if the Town Belt of primâ facie case established by the claimants has been upset. The argument of Qui prior tempore potior est jure is the maxim. And this clear principle of justice was strongly, though almost unnecessarily, affirmed in the legislation of the General Assembly on the subject of Native Reserves.
The Native Reserves Act, 1856, says:—
"Nothing in this Act contained shall have the effect of removing any invalidity or curing any defect in any grant or other conveyance made or issued before the passing of this Act, under which any lands may have been granted or assured to any person or persons for religious, charitable, or educational purposes for the benefit of the aboriginal inhabitants: Provided also that nothing in this Act contained shall extend, or be implied to extend, to give validity to any appropriation or setting apart of any lands for such puposes as aforesaid, which have been heretofore so appropriated or set apart in contravention of any terms of purchase, or contracts affecting such land."
\
Nor would the fact that the Governor was made aware at the time that this land was part of the Town Belt alter the legal position of the question, for the Governor has, and legally exercises, only such powers as are conferred upon him by the Acts of the local Parliament, or Acts of the Imperial Parliament, or Letters Patent, or Instructions issued to him under the authority of Imperial Acts. He has no original authority (Hill v. Bigge, Moore, Priv. C. Rep.), nor is it competent to him to make grants ex certâ scientiâ et mero motu, in the ancient signification of that phrase, as might have been done at one time by the Crown in England. The lands of the Colony can be dealt with by the Governor, as by all inferior officers, in manner provided by the written law, and in no other manner.
Nor do I think that the before-quoted clause of the Waste Lands Act, 1858, ought to apply to a case of this character. The provision or engagement made by the Governor was not, in my judgment, one sci.fa. were taken to repeal it, I think that it could not be maintained, but would fail as being, in the technical phrase, "in deceit of the Crown," prior and permanent equities and interests existing, supposing, as I have assumed, that the land has been legally dedicated. The Court is, therefore, of opinion that it cannot order a grant to the claimants of such part of this
This is a case in which Apihai te Kawau, on behalf of himself and the members of the tribes Te Taou, Ngaoho, and Te Uringutu, claims a certificate of title to an estate at
Heteraka Takapuna, on behalf of himself, as a remnant of the ancient possessors of this isthmus, and on behalf of himself and the tribes
Paora te Iwi, of the tribe Ngatitamaoho, sets up a similar right on behalf of himself.
Wiremu te Wheoro, of the
All the counter-claimants seek.only for a partition and a share in the estate along with the claimants, except Heteraka Takapuna, who denies the title of any person except himself and those who claim under or with him, though this extreme position was not taken by his counsel.
I will here mention that I propose to use the name of
I intend also generally to use the first person in expressing the opinion of the Court, simply for convenience of diction, but I should add that in all points the Assessor entirely concurs with me. It is desirable also that counsel should be made aware that he understood their addresses as they were delivered in English, although, as he expressed himself, he would not have been able to reply to them in that language.
There are a few points brought under the notice of the Court by the several counsel which I will. notice here before proceeding to treat the merits of the case itself.
At a subsequent stage of the proceedings, when
It does not appear to me that the Court has any concern with the relations which exist, or may exist, between
The first is not alleged. The second was hinted at as far as concerns myself, and broadly stated as far as the Assessor is concerned. Now, I am inclined to think that
Now, when I remember how, at a previous sitting of this Court,
Therefore, although I do not think
The case has presented unusual difficulties, or rather the great value of the property has caused so much care and attention to be devoted to the preparation of the cases, that an appearance of intricacy and complication has been given to transactions which, in themselves, are clear and intelligible.
When once the history of the case is understood, and those passages which really have no bearing on the questions to be decided are eliminated from the evidence, the great principles which have governed this Court in determining Maori custom, or the laws of native ownership of lands, will suffice to guide us to a safe decision as to the effect of what remains.
The history of this estate is very much mixed up with the history of this isthmus, and that again is almost an epitome of the history of New Zealand during many years, for this was the highway of the armies of the tribes in old days; and whether going North or South, all war parties passed through or touched at
For the sake of brevity and convenience, I have condensed this part of the question into the form of a historical chronology, and I have spent much time in preparing this statement in order that the judgment might be as short as possible. I cannot expect that all the dates and statements contained in this paper will be acknowledged as absolutely accurate, but I have got the best results I could from conflicting evidence, and in places where the statements seem to be contrary to some particular evidence, it must not be supposed that I have not noticed that evidence, but that I have preferred some other to it.
The land about this isthmus appears to have gone in early days under the general name of
As these original tribes became mixed up with intruding tribes, new names arose, such as Te Aua,
Thus at the opening of our history we find that the part of the i.e., the descendants of the Kaipara tribe Ngaririki, from their intermarriages with the original Ngaoho (Ngaoho No. 1), have a chief of their own (
The Ngatiteata and Ngatitamaoho, Ngatiuaho, and Ngatipou, are inhabitants of the southern or western sides of
Heteraka Takapuna is a member of three tribes, Ngatitai, Ngatikahu, and Ngatipoataniwha, and claims also to be descended from the Waiohua; and whether this claim is made out, or whether he and his co-claimants (the Thames tribes) have, by their ancestors or themselves, ever intruded themselves into this country is one of the principal subjects of this inquiry.
It will be at once apparent that the pedigrees of the suitors will be a matter of great importance in determining the questions arising in this trial.
This Court has no common law to direct its steps by; in fact it has by its own operations to make its common law, and to establish "year-books" which may in the course of time afford a code of law to which appeal may be made for guidance in deciding all questions which may come before it And it has been the practice of this Court hitherto to inquire into pedigrees, giving them such weight
The Court does not therefore propose to depart from its precedents, but will, for the purpose laid down in previous Courts, give such weight to the pedigress as it thinks each is entitled to. And I may here state that, after much investigation and thought, I have not discovered any reason why any of them should be discredited—several little discrepancies, such as putting down Huakaiwaka as a woman and speaking afterwards of him as a man, not to my mind affording any ground for supposing that a person of that name never really existed, or for doubt whether he or she really occupied the allotted place in the pedigree.
I have, from the evidence, drawn out the pedigrees attached hereto, and will, in this judgment, allude to them hereafter when necessary, as evidence.
Heteraka Takapuna founds his title and that of his co-claimants, the i.e., his own niece. The uncle and the nephew went out one day to fish near the Bean Rocks, and the uncle took the nephew, then a boy, and put him on the rock at low water, and left him. As the tide advanced, his mother from the shore heard his screams, put off in a canoe from Kohimarama, and rescued him. Kapetawa cherished the remembrance of this affront until he grew up, when he raised a war party of
Now, it is abundantly clear that this alleged conquest is nothing but a raid made for revenge. If Kapetawa had extended his views, and followed up his successes at
And this inroad into the district could have made no permanent impression, for we find at a later period the country fully peopled, and Kiwi, chief of the Waiohua, the tribe alleged to have been destroyed by Kapetawa, living at Mangakeikei (
It does not appear to me that this inroad of Kapetawa should be allowed to have any weight in determining the question of ownership of any land, except perhaps that portion of
About the year 1720, a great chief of Waiohua or Ngaiwi is found living in strength at
At length, the Kaipara tribes took steps to avenge the slaughter of their friends, and about 1741 an army of Te Taou, under Wahaakiaki and other chiefs, descended from Kaipara to
Two months after the pa of
Thus ended this episode in the history. Te Waiohua were extirpated as a tribe, and individuals only existed in a subject state, or as wives amongst the conquering tribe. Tuperiri built his pa at
Before leaving this epoch, I desire to notice two remarkable circumstances which appear to me to have an important bearing on the case generally, and especially as indicating to some degree the real value of Heteraka's claim, and the importance to be attached to his case as put forth in his own evidence. Many witnesses speak of these histories with slight variations, which, to my mind, give a greater aspect of truth to the teller of traditions. Some of these variations were noticed by counsel, and admitted as errors or explained in a remarkable manner, as for instance the two Kiwis; but in the general tenor of the tale there is evidently a clear and very consistent train of history. Many of these witnesses must have seen and talked with the actors in these events. Apihai very probably heard from his grandfather the tale of the night attack on
From the period of this conquest for about half a century, there is no evidence of peace having been broken. Te Taou and the new mixture, under a revived name—Ngaoho (really Ngaoho No. 2)— and the returned refugees of Waiohua, under the name of Te Uringutu, lived together in different places in or near the isthmus, in undisturbed possession. They appear to have abandoned some of the pas that they captured from Te Waiohua, but maintained
About 1780, an event fruitful in disturbances took place. Te Tahuri, the daughter of Te Horeta, who by descent was half Ngaoho and half
The prognostication of the
A year or two afterwards, a battle took place between the two parties at Rangimatariki, near the Whau, in which
I can find nothing which I think the Court ought to rely upon until about the year 1815, when
A few years after settling at
About the year 1820 we find a large party of
A party of the Bay of Islanders (
This year (according to Heteraka)
In 1824 the three tribes were living at TeRehu(Low and Motion's), and had also a settlement at Kumeu, the head of the
In the early part of this year a party of
Heteraka tells us of an expedition of
A short time afterwards Te Taou, Ngaoho, and Uringutu, to the number of two hundred, settled permanently at
In the year 1826,
Although Apihai's tribes had not joined in the battle of Ikaranganui, they seem to have known that it would have been unsafe for them to. await the arrival of
At this time the Upper
The close of this year found the whole of this isthmus without an inhabitant.
Apihai and his party collect from the forests at Waiaro, near Mahurangi. They are here attacked by Te Parawhau, under
Shortly after Apihai and his people settle at Kopapaka, they are fetched by Hakopa Te
The other Ngatiwhatua tribes, with some of Apihai's people,
Ngatitipa (
Ngatiwhatua, Ngatitipa, and other tribes defeat
A portion of
The
When passing down the
Great expedition of
Te Taou, &c, still living at
It thus appears that during this interval the fortune of war had been gradually but constantly turning against
Accordingly we find in 1835 Te Wherowhero, with his own personal tribes Ngatimahuta, Ngatiapakura, &c, brought down Ngatiteata, Ngatitamaoho,
In this year the missionaries,
In December, 1835,
About the same time Apihai and his friends sold to
The succeeding year, 1836, Apihai and his people were living at Karangahape, but they commenced to cultivate at
In April of this year, Uruamo and Watarangi, with 60 of their people (Te Taou), went to Orere, near
The Court cannot accept either the account given by the
The Court, then, being of opinion that no importance whatever is to be attached to this conversation of
In 1837 a pa was built at
In 1838 the principal place of Apihai's people still appears to have been
In 1839 the
On the 29th of January 1840,
The remaining part of the history of our case is of little importance, and I will therefore again read from my epitome.
January.—Governor
March.—
September.—Governor
Mr. Shortland Acting Governor. Some Ngatiteata commence cultivating at
December.—Fitzroy Governor. Gift of
The Ios. an acre proclamation. and Te Meihana, visit
May II.—Great feast at
October.—The penny an acre proclamation. Wetere Te Kauae sells part of
November.—Governor Grey.
The evidence differs as to whether Ngatiteata or Ngatitamaoho were living on this land before the time of Governor
In fine, I say that the Court cannot recognise such claims as these, without disregarding all its precedents, and ignoring the objects for which the Legislature constituted it, and overriding its previous history and decisions. It is scarcely necessary, therefore, to notice that, during these descents, the conquering Taou came in and took this part of the country by force of arms; and that, if those ancestors who are now set up, had remained on the land which is now claimed through them, they would either have been taken prisoners or killed, unless they had been allowed to intermarry with the conquerors, or become members of their tribes, as Te Tahuri did, and Mokorua did. In any of those cases the present claimants would never have existed.
The only point in the case of Ngatiteata and Ngatitamaoho which is of any value is that
The presents made on thesales of landabout here do not seem to the Court to have carried any admission of ownership of the land sold. It is customary for Maori chiefs when they come into the possession of property immediately to distribute it among their friends, especially amongst those from whom they have received or expect to receive benefits, or to whom they are ancestrally related. And there is no doubt that Ngatiteata, with the other
The Court is, therefore, of opinion that
The cases of Wiremu Te Wheoro and Hawira Maki are stronger than those of Ngatiteata and Ngatitamaoho. Maki, the father of claimant, seems to have lived the greater part of his life with Apihai, and only left
The case of Maki is more doubtful. He does appear to have lived with Apihai for a great number of years, and his claim apparently is in no way inferior to
Te Wheoro seemed to found some of his right to this land on the assistance and support afforded by
The Court is therefore of opinion that Wiremu Te Wheoro and Hawira Maki have no interest, according to Maori custom, in the
The name
It appears to the Court to be a position which cannot be controverted, that the several things brought forward to support the joint title of Heteraka and
Taking first, then, the case of
Most of the witnesses said they were ignorant of the ancestry through which they claimed this property; and I do not remember that any one, except Heteraka, attempted to set forth any pedigree. The answer, usually, was, "I claim through the ancestors mentioned by Heteraka." Now, this pedigree, mostly prepared by
The Court therefore thinks that this ground of their claim fails.
The affair of Kapetawa has been disposed of, and I cannot find evidence of any other conquest. I thought at one period of the case that I could trace something in the doings of Ngatiwhanaunga which indicated a right, acquired by force of arms, superior to that of the other Thames tribes, but the idea was not borne out. Subsequently it was stated by witnesses, and finally by their counsel, that their claims were all equal.
No modern occupation can avail anything in establishing a title that has not for its foundation or authority either conquest or descent from previous owners, except of course in the case of gifts or voluntary concessions by the existing owners. Such occupation is called by the natives "he noho noa iho"—equivalent to our word "squatting." As above stated, the Court is of opinion that, whilst
The residence of Ngatihura and Ngatipare hapus of
I stated, during the progress of the trial, that the Court had made a practice not to attach much importance to the purchases made by the Government as evidencing any title in the sellers. It was the duty of the Land Purchase Commissioner to obtain land that could be immediately and peaceably occupied by settlers; and when a chief came to demand payment for an estate, backed by a sufficient following, it was found more expedient to satisfy his claim than to contest it. The rule which has governed the Court on this point is that, if on land being sold to the Government a tribe made no claim, it might be received as a very strong evidence that it had none, but if it made a claim, and it was recognised, that fact afforded very slight evidence that the claim was a good one. The sale of all the land from
The "Kupu" of Herua as it is called—that is, the permission alleged to have been given by
The case of Heteraka Takapuna has been very carefully considered, not only because the Court felt itself called upon to devote more than usual time and thought to a case on which so-much labour has been expended by the parties, but also because it desired to discover or to recognise the facts or principles in the case which called forth so much energy and skill. But the Court has made the endeavour in vain. Of all the claims which we have been called upon to consider, we think Heteraka's is the weakest, and the only obscurity that could possibly surround it is caused merely by the immense mass of facts which have been connected with it, and which render it difficult to ascertain its real character.
It is impossible to review all the evidence brought forward in support of Heteraka's claim, but as he was himself examined, and gave a full statement of his case, I will as briefly as possible notice some things that he said, because the case as put forth by him differs in important particulars from that elaborated by his counsel:—He commences with the early times, and states that the first inhabitants of this country were destroyed by Ngatiwhatua. "Ngatiwhatua is the tribe that I know attacked Waiohua; I mean Te Taou. Te Taou destroyed Ngaiwi, also Ngatiwhanaunga,—and for another reason. I don't know of any others." And on cross-examination the next sitting-day he stated that the Thames tribes, naming them all, are the people who slaughtered the original inhabitants, and added that he Jhad been scolded in the interval for making the previous statement.
"I was born at
Two witnesses, one of whom was grown up and both living when Heteraka was born, contradicted this. Paramina says: "I know where Heteraka was born. He was born at Whaitere, in Kaipara. I was living there at the time. He was grown up when he left Kaipara. He left Kaipara on account of a squabble with another boy, Te Po. They quarrelled about fern root. Then he and his father Purehurehu left. There is no doubt about his being born there. I knew Heteraka's mother, Tahikura." She was of Ngatiwhatua, hapu Tematarahurahu. Heteraka admits having lived with his mother at Kaipara as a child, and that his mother lived there before she was married, and that in fact his father went there to marry her. and remained there some time, but came down to
This may be true, but Heteraka says also that his brothers and sisters were born there. Now, remembering that he states that his father and mother were married at Kaipara, and remained there some time after their marriage; that he was the first-born, that they were again at Kaipara when he was knee-high; that, as he says in another place, " She was a young woman when she went there, and an old
On cross-examination the following questions were put and answers made:—
Has Te Kawau any claim to
Has Te Taou any claim?—No.
Has Te Taou any claim to any land about here, from
Did Te Taou own Te Pukapuka?—No.
Or Purewa?—No.
Or Queen-street?—No.
Or
Did Apihai's people own any of these?—Formerly, until now they have no claim.
Whose were the lands from the
Did not Ngatiwhanaunga join?—Yes.
Is the claim of
Have they always had this claim?—Yes, long before the fighting.
Had Apihai and his people never any claim?—None whatever.
Now this appears to the Court extravagant, and represents a position that very wisely was not taken by Heteraka's counsel.
He tells us in another place of Te Hehewa having held
In either case, the question occurs to my mind what became of the defenders—whoever they were—when Ngatiwhatua assaulted the place and killed all the inhabitants?
How far did the Waiohua estate extend?—It went to Wakatiwai and on to
And then he stated that he had made no appearance at the Land Courts recently held at Kauaeranga. It appears that
It would be very difficult to reinstate Heteraka in these dormant rights.
Who is the true representative of Ngaiwi now alive?—Te Hapimana, Keteraka, and the children of Isaac.
But
Did you not say at the previous trial that you were a Ngaiwi?—I said so.
Who built
Did Te Hehewa live there?—Yes.
Why did he leave it?—He left it, and gave it to Ngatiwhanaunga with the land. The pa was attacked. It was attacked by
You said you were living at
Had you no other home all that time?—I used to reside there and at Mauinaina Pa.
He here forgets his previous statement that he was living at Kaipara with his mother from the time she was a young woman until she had become an old one.
What is the history of
I often wished, during the progress of the trial, that there had been a jury, so that the Court might have been relieved of that part of their duty which is comprised in determining facts, and judging of the credibility of witnesses; but, having to perform this function, I ought to express that the Assessor felt equally with myself that Heteraka's evidence made on our minds an unsatisfactory impression.
The question of Heteraka's ancestry, as set forth in his genealogical table, has already been partially dealt with.
The Court is of opinion that his pedigree is in no way connected with any tribe who ever held possession of this land, or of any part of
The question as to whether Heteraka is a representative of Te Waiohua at all is very doubtful. Many witnesses say that he is, and that Rangikaketu was a Waiohua—some of them entitled to great credit in matters of this sort, such as Paora Te Iwi;—but others assert in a very decided manner, that he has no claim to be so considered— that he is a Ngatitai, Ngatikahu, and Ngatipoataniwha, and nothing else. It will be remembered how his father, grandfather, and greatgrandfather had been described as each of a different tribe; and
Heteraka's claim by conquest is clearly absurd. He is not a descendant, according to his own showing, from Kapetawa; and, even if he were, it would avail nothing, for that was not conquest, as previously shown.
The occupation of
After the time of the English sovereignty, Heteraka came again, in Governor
When Tauoma was sold by
Much was made of a greenstone slab called Whakarewhatahuna, which it was alleged carried with it the "mana" of
The newspaper correspondence is not before the Court, and the interviews with
The Court quite agrees with
But giving Heteraka the full benefit of this doctrine, and imagining ourselves to be sitting in 1841, we think that his case would be no stronger then than it is now. In fact, the Court is of opinion that he never had any title to or interest in this land, nor even a "scintilla juris;" and that he has no more now. His claim is therefore dismissed both as concerns himself and all who claim by, with, or under him.
The claim of Te Taou, Ngaoho, and Te Uringutu will now need short notice. The epitome of the evidence read with the table of ancestry, and combined with the part of this judgment which has gone before, will sufficiently explain their status. But it ought to be noticed that of seventeen native witnesses called by Heteraka not one is out of his own tribe or disinterested, while of twenty native witnesses called by Apihai nine have no claim on the estate. This case is briefly this: Te Taou—a tribe resulting from the union of a Northern tribe with an ancient tribe called Ngaoho—came down from Kaipara for reasons which have been previously stated, exterminated the tribes that occupied this isthmus, entered into possession of the empty country and settled down permanently, and here they have ever since remained, except during periods of hostility, during which the surrounding land was evacuated as being unsafe to live in, always returning as soon as the danger ceased.
Shortly before and about the time of the arrival of Governor
The Court has found that there are no concurrent rights or titles which ought to diminish their estates or interests; and it therefore decides that one or more certificates of title shall issue in favour of these tribes, or in favor of such persons comprising them as shall be determined upon on hearing further evidence, or as shall be agreed to amongst the members of the tribes.
It only remains for me to thank the learned counsel engaged in
£50,000), no less than the example of the several counsel, demanded this care from the Court.
Through a cloud of evidence, a vast deal of it irrelevant, and most of the rest absolutely contradictory, the Court clearly sees these facts:—
This being so, the Court cannot admit that they were deprived of the land by their friends. At all events, they cannot rightfully be so deprived now; and it is clear that they have been in occupation until a comparatively recent period.
The great effort of the opponents' counsel was to establish the absolute serfdom of the Ngatitara to Ngatitamatera; and some degree of subordination seems to have been proved, but principally by the evidence of modern facts. Had the fact, however, been fully proved, the Court could never admit that such a position—particularly when not arising out of a conquest—necesarily involves the disherison of the rahi of all their lands, and the vesting them in the hands of the chiefs of the dominant tribe. It has been admitted on all hands that there never has been fighting between the two parties; on the contrary, it has been shewn by their opponents that their friendship was first broken by the discussion in respect of leasing the land for gold mining, and it has been shewn that their ancestors were equal. If, then, the weaker were in quiet possession of lands before they sought the assistance of the stronger to. avenge their losses by the conquest of other lands, and they remained for ever after in friendship, albeit the weaker might be more or less subordinate to the superior, and whatever may be the right of the protecting tribe in the land conquered by them, the Court cannot see how the protected tribe can have become dispossessed of their original lands.
Judgment must therefore pass in favour of the claimants.
This case, which has occupied the Court for the last eight days, is a claim preferred by the Ngatitara tribe to a piece of land called
The witnesses on the side of the Ngatitara state that their ancestors made war upon the Ngamarama, that they defeated them at Koukaro and Koriori, and took possession of that part of the country; that then an intermarriage took place, and peace was made. That a section of the tribe occupied the land they had seized, and that an arrangement was made with the Ngamarama to the effect that one end of the district should be tapu, and the other open for war. The peace was not of long duration; war broke out again between the two tribes and
It appears to the Court to be beyond the bounds of probability that any small number of Ngatitara should have remained in occupation of Ngamarama land, by right of conquest, after the crushing defeat received by their tribe at Otawhiwhi; or that one end of the district should have been at peace while a war of extermination was going on at the other. If the Ngatitara obtained a footing on this land at all at the time they state—which is extremely doubtful— they must have been expelled after the defeat of their tribe at Otawhiwhi. And that the Ngamarama were in possession is evident from the fact that when the Ngatitamatera came to avenge the slaughter of Ngatitara they were residing in their pas at both ends of the district.
It was stated in the case of tapu and the other left open for war is disproved by the fact that when the Ngatitamatera war-party divided at Te Rau-o-te-Whero, the Ngatitara chief Te Whakamaro joined
The evidence given by Tupeka as to the attack of the Ngatitara chief, Te Autororo, upon the Ngamarama, after the battle of Otawhiwhi, and the utter destruction of himself and party, tends much to strengthen the Ngatitamatera case. It is the opinion' of the Court that the Ngamarama, after Otawhiwhi, recovered possession of these lands, and whatever the Ngatitara may have gained previous to Otawhiwhi they entirely lost after their defeat at that battle, and that subsequently the Ngatitamatera, in Maori fashion, extinguished the Ngamarama title. This seems borne out by the fact that the only disputes about these lands of late years have been between the Ngatitamatera and Ngaiteraugi. At the last Court the
The right of conquest by Ngatitara being disposed of, the next question is that of occupation; and here, although we have facts and not tradition to deal with, the evidence is still more contradictory, each party asserting that they cultivated on the land, and that the other did not The Court is of opinion that the occupation of
This is a claim made by a native named Akapita for himself and others to. certain lands situated between the Manawatu and
The claimants ground their title firstly on conquest, stating that the land in question was conquered from the Ngatiapa tribe, the original possessors, by the Ngatitoa tribe under their chief Te Rauparaha, who subsequently gave, or granted, this land to the Ngatiraukawa tribe, his allies, of which tribe the claimants are members; and secondly, failing the proof of the right by conquest, the claimants claim under any right which it may be proved the Ngatiraukawa tribe, or any sections or hapu of that tribe, may have acquired either by occupation or in any other manner.
This claim by Akapita is opposed by the Crown, who have purchased from Ngatiapa, on the grounds that the original owners, the Ngatiapa, have never been conquered, and that the Ngatiraukawa as a tribe have not acquired any right or interest whatever in the land, and, moreover, that the land claimed by Akapita is now the property of the Crown, having been legally purchased from the right owners.
A great mass of evidence has been taken in this case, from which, after eliminating minor matters and everything which has no very important bearing on the matter for decision, the following facts appear to remain.
Before the year 1818, and to that date or thereabouts, the Ngatiapa tribe were possessors of the land in question, its owners by Maori usage and custom, the land being a part of the tribal territory or estate.
On or about the above date the chief
The invaders then passed on to the southward, and after a series of battles, onslaughts, stratagems, and incidents attendant on Maori warfare, but not necessary further to notice here. Te Rauparaha, with the assistance of his
After this inroad, in which
It is to be noticed here that on the return of
After arriving at
About a year after the return of
The effect of the invitation by Te Rauparaha to the Ngatiraukawa tribe to come and settle on his newly acquired lands was, that soon afterwards strong parties of Rauka.wa came from time to time to pro forma, or nominal, possession, of the land, which, however, would be entirely invalid except as against parties of passing adventures like themselves who might follow; because the Ngatiapa tribe, though weakened, remained still unconquered, and a considerable proportion of their military force still maintained themselves in independence in the country under their chief Te Hakeke. But what was no doubt fully as much in favor of the Ngatiapa tribe, and which may probably have been the cause of their not having been eventually subjugated, was the fact already noticed, that
To Europeans not much acquainted with the peculiarities of Maori thought and action, the destruction by these passing parties of Ngatiraukawa, of individuals of the Ngatiapa tribe—a tribe with whom
It should be noted here, that on the first coming of
For the sake of brevity and perspicuity, I have avoided as much as possible, recurring to many minute circumstances, seeing that the questions under consideration can be decided, as far as the Court can decide them, on the evidence adduced, on broader considerations, which are more easily understood. I now therefore pass at once to the time, about the year 1829, when we at last find the whole emigration of the Ngatiraukawa tribe arrived and settled about Kapit,
The whole Ngatiraukawa emigration having arrived, it appears that they did not immediately disperse themselves over the conquered country, but remained for about three years in the vicinity of
During the above period of time, between the arrival of the Ngatiraukawa tribe and its final occupation in sections of the different districts allotted to them, it appears that the Ngatiapa had also, with the full consent of
There, however, is no evidence at all to show that
Secondly, that the quantity and situation of the land to which the individuals of the above named Ngatiraukawa sections who have not sold or transferred their rights are entitled, and the conditions of its tenure are described in the accompanying schedule.
And the Court finds also that the Ngatiraukawa tribe has not, as a tribe, acquired any right, title, interest or authority in or over the block of land which has been the subject of this investigation.
This is an application by Te Raihi and others, members of the Ngatihaua tribe, of
And 4th. That certain persons of the Ngatihaua and
And, finally, that the claim of the Ngatihaua is in every part unfounded in Maori usage and custom.
The claim of the Ngatihaua is also opposed by Te Wharenui, who claims the
A certificate of title has been already ordered for a piece of land called Te Raukaka, which is contained within the external boundaries of the
The question at issue, separately from the claim made by Te Wharenui, is, in fact, not a question between individuals, but between the great Marutuahu and hapu, who are collectively known as Marutuahu, and who oppose the Ngatihaua in this claim, did, some eight or ten years before the battle of Taumatawiwi, evacuate their own proper territory or district on both sides of the Firth of the Thames, and came and settled at kohuru, succeeded in surprising a Marutuahu chief named
Such things were, and the Court is obliged to recognize them by a passing notice, as it will be seen that some of these incidents, now only noticed in a general way, are brought before the Court, sometimes with reason and-effect, and sometimes otherwise, as evidence of title to land, according to Maori usage and custom. It appears now that after this long succession of conflicts, through which the two tribes had passed without either party having gained any marked advantage over the other, they at the same time, and, as it were by common consent, made up their minds to end the contest in one great and final battle. The Marutuahu, with this view, abandoned all their scattered forts, with which the country was studded, and in the neighborhood of which many of the previous desultory engagements had taken place, and concentrated their whole force at their principal fortress of
It becomes necessary in this place to revert to the fact that each of the contending parties claims to have won the battle of Taumatawiwi; the Ngatihaua claimants, in fact, found their claim entirely on the consequences attending the victory, and they also make the following admissions:—I That, up to the time of the battle of Taumatawiwi, the Marutuahu tribe were the owners of the land in question, that is to say, the they won the battle, and did not lose the land; that it has always been in their possession and under their authority, and that no one has ever occupied it except by express permission from themselves, and under restrictions.
As the question of who won the battle of Taumatawiwi is contested, and as the decision of that point is of considerable importance, though not necessarily of decisive effect in the conclusion of the main question, it will be well to consider and decide it first; but before proceeding to do so, it is desirable to reduce it to as simple a form as possible, and to state clearly the points on which the main question of the ownership of the not lastly, the great ability of the legal advocates on either side, and their strenuous and unflagging efforts in the cause of their respective clients The only part of the case to which these remarks do not apply is the history of the battle of. Taumatawiwi, and it is remarkable that although both parties claim the victory, and the Ngatihaua in fact claim the land of the
The next question which the Court has to consider and decide is of chief importance, and is as follows:—Was the victory obtained by the Ngatihaua at Taumatawiwi a conquest in the sense of enabling them to take the land claimed by them, and did they in fact take, occupy, and possess themselves of the land in question? A) victory is not necessarily a conquest. The party beaten on one day may be more ready for the battle on the next than the enemy by whom they were worsted, and the Ngatihaua themselves declare that the night after the battle of Taumatawiwi was passed by them in. great exertions to burn their dead lest they should fall into the hands of the enemy; dry timber for the purpose was scarce and distant, and exhausted as they must have been by the long and desperate contest of the previous day, it does not seem likely they would have undertaken this excessive and unusual labour unless they had at the time considered themselves in a very unpromising condition, and not the victors who had won by conquest a large tract of land in the enemy's
The block of land claimed by the Ngatihaua, and called
Early on the morning after the battle, according to the account given by the Ngatihaua witnesses, the verbatim the speeches of the different Ngatihaua chiefs. One witness says that Te Waharoa, in addressing the Marutuahu chief, said, "If you had beaten me, you would have taken all my land, but as it is you who are beaten, all my land has returned to me." This would appear to mean the
The Marutuahu having departed, the Ngatihaua came at once into possession of the lands at
I. For twelve years following the battle of Taumatawiwi, they (the Marutuahu) made successful and aggressive war against the Ngatihaua and their allies, attacking them repeatedly, not on the runanga or council of the Marutuahu tribe, who allowed them to live on the land for a time in consideration of their distressed circumstances, the Ngatihaua having been driven from their own country in
The evidence on several material points being, as has been remarked, very contradictory, the Court, in deciding between the conflicting statements, has had to trust chiefly to the evidence of a few apparently uninterested witnesses, such admissions as have been made by either party, chiefly under cross-examination, and such parts of the general evidence as seem trustworthy, and which, at the same time, have any bearing on the question at issue, but which bear but a small proportion to the mass of evidence given in Court, and with these guidesweshall nowproceed toenquire into the position held by the tribes relatively to each other after the battle of Taumatawiwi, and observe what was the real nature of the occupation of the
We will now make some extracts from the evidence of Albert John Nicholas, another European settler and trader, and as the witness i.e. his crew of Ngatihaua young men) steal the pigs belonging to the
The witness
We shall now quote from the evidence of Te Raihi, a principal chief of the Ngatihaua, and principal claimant in this case, and also from the evidence of several other Ngatihaua witnesses, to see by their own shewing and admission what the occupation and cultivation of the
Question by Court: Do you think that idea of Waharoa's could be carried out successfully? Answer: "I cannot say that it could. After the
This witness comes to prove the right of the Ngatihaua by occupation. He declares he lived and cultivated at two different places on the
Pero Tio, a Ngatihaua witness, amongst other admissions, says, "When I went to cultivate at Kaipara, on the
On the other hand, the Court, on examining the evidence brought up by the Marutuahu, finds that it must either reject much of that evidence as false, without any just reason for so doing, or must conclude that the Marutuahu have proved the following facts:
The evidence on which these conclusions are founded is positive and direct, and has not been shaken or weakened in cross-examination.The Court, therefore, taking into consideration also the admissions made by the Ngatihaua witnesses, which go very far indeed to strengthen and corroborate the evidence of their opponents, and seeing that the whole of the evidence as to the Marutuahu side must be discredited without reason, or that the points maintained must be taken to be proved, is unanimously of opinion that the Ngatihaua claimants have failed to prove their title to the
It is therefore ordered that a certificate of the title of the Marutuahu tribes to the lands of the
Te Wharenui claims to be individually interested in a large portion of the
The Court considers that he has no claim.
This is a claim of Akapita Te Tewe and others, representing certain portions of the Ngatiraukawa tribe, to a block of land lying between Manawatu river on the North and the
These boundaries include lands the titles to which have been investigated and decided by this Court, which lands are therefore excepted from the present inquiry.
The claimants apply to the Court to order certificates of title in favor of individuals and of sections of the Ngatiraukawa tribe, asserting an exclusive ownership, founded on conquest and on continuous occupation from a period anterior to the Treaty of Waitangi.
The claim is opposed by Te Kepa Rangihiwinui and others, representing five tribes—Muaupoko,
The claimants and counter claimants, with their witnesses, have been heard by the Court on the general tribal question, and
The Court finds: That sections of the Ngatiraukawa tribe have acquired rights over the said block, which, according to Maori custom and usage, constitute them owners thereof (with certain exceptions) together with Ngatitoa and Ngatiawa, whose joint interest therein is admitted by the claimants.
That such rights were not acquired by conquest, but by occupation, with the acquiescence of the original owners.
That such rights had been completely established in the year 1840, at which date sections of Ngatiraukawa were in undisputed possession of the said block of land, excepting only two portions thereof, viz.:
The Court finds: That the Ngatiapa, Whanganui and Ngatikahungunu tribes have no separate tribal rights as owners of any portion ot the said block, nor any interest therein beyond such as may arise from connection with the Muaupoko resident at
That the
This is an application made by Ngatiraukawa claimants for a certificate of title to that portion of the Manawatu Kukutauaki Block, which was excepted from the previous order of the lease made in their favour, excluding only the portion admitted to belong to the Muaupoko tribe
The application is opposed by the Muaupoko, who claim the whole of the excepted portion as owned by their ancestors, and still owned and occupied by them.
The claimants have brought forward evidence, and have sought to prove such an occupation of the land, the subject of inquiry, as would amount to a dispossession of the Muaupoko.
We are unanimously of opinion that the claimants have failed to make out their case, and the judgment of the Court is accordingly in. favor of the counter claimants.
The claimants appear to rely principally on the residence of Te Whatanui at
It would appear that Te Whatanui took the Muaupoko under his protection, and that he was looked up to as their chief, but it does not appear that the surrender of their land by the Muaupoko was ever stipulated for as the price of that protection, or that it followed as a consequence of the relations which subsisted between that tribe and Te Whatanui.
We find that the Muaupoko was in possession of the land at
We find, further, that Te Whatanui acquired by gift from Muaupoko a portion of land at Raumatangi, and we consider that this claim at
It has been made clear to the Court, on fully weighing the lengthy evidence taken, that from ancient times this land was occupied by
After the
In the troubled times which followed the introduction of fire-arms, the whole associated Arawa tribes, including
As soon as the conquest from the Ngatirangihouhiri was completed by the taking of Te Tumu and the occupation of
They could not have done so except as a result of the conquest made by the whole tribe, and the occupation of particular pieces must have been by the common consent. But Maori custom as well as European law, requires that when indivdual rights have been recognised by the community they should for ever be held secure; therefore, since the conquering Arawa tribes respected the ancestral rights of the
The map of this claim includes almost the whole of the great plain which stretches inland from
All three claims were advertised for hearing before the
A small portion of the Rau-o-te-huia claim is also included within the boundaries shown on the map, and possibly a very small part of the Waipumuka may be; but the survey must be adjusted, and any portion of those claims, as shown in their respective surveys, is to be excluded from this, and exempted from any effect of this judgment, as well as
A considerable number of separate claims have been set up to the whole or to parts of the land under adjudication, but they all resolve themselves into three cases, namely—
Evidence has been given at vast length before the Court. Every witness, after a lengthened statement, has been cross-questioned, with wearisome iteration, by each of the opposing claimants, often on mythical and palpably fabulous stories of their remote ancestors; still more often, on the details of battles, way-layings, and slaughterings, minutely told off as payments for each other, but which could only throw light upon the case in so far as they afforded means of estimating the ultimate results of those protracted contests.
From all this immense and confused mass of traditions, the following salient facts have come out with a clearness which leaves their truth beyond reasonable doubt
It has been shown that for about five generations after the arrival of the Arawa canoe, the descendants of Tamatekapua, and probably also those of Tia, lived on the land in peace. It is quite unlikely that either of these set up any right to exclusive possession of the land, since the state of tribal jealousy and of constant war and animosity which has long been the normal condition of the New Zealanders, especially of those tribes which are closely connected by blood, does not seem then to have commenced.
It is clear that many of the traditions relied on to establish these ancient claims, are much more recent than the events they profess to record; there is much to show that here, as in our own and other countries, names have been given to places and objects, and then traditions have grown up professing to account for these names: thus the point at
Rangitihi, who was fifth in descent from Tamatekapua, is admitted
About five generations later, it is admitted that Ruangutu occupied
Since the judgment given by the Court at
The Court has no difficulty in declaring its belief that this pedigree is spurious, and that
The various tribes descended from the Arawa immigrants especially those from Rangitihi, who were formerly called "Ngaoho," but who are now best known as the "Arawa," seem to have fought with the invaders on the land now under investigation for a long time, and to have obtained "utu" for their constant defeats by occasional reprisals; but the whole assembled tribes were so utterly defeated in two successive battles at or near Kawa on this claim, that at length a peace ensued, based on an entire abandonment of the open lands to the Ngatirangihouhiri.
Tapuika have asserted that after the first fights with the Ngatirangihouhiri, they became closely allied with them by intermarriages, and that they continued to occupy the
Thus all the ancestral titles over these lands, derived from the first comers in the Arawa canoe, were effectually swept away, and for many generations no one could have pretended to set up a claim, except under Ngatirangihouhiri, until an entirely new order of
As soon as the first murderous onslaughts were over, the whole of the Arawa tribes seem to have been impressed with the necessity of suspending the jealousies which had kept them in a state of constant internal warfare, and of uniting to obtain firearms to prevent the repetition of the attack from the North. A position on the sea-coast was necessary to enable them to effect this.
Some alliances had been made by individual chiefs through intermarriage with the Ngatirangihouhiri, now known as
In virtue of this concession by
So matters remained until the well-known murder of Te Hunga, a relation of the formidable Ngatihaua warrior, Te Waharoa, which was committed by
The Arawa tribes speedily mustered to avenge this terrible blow, and their vengeance fell, not on Te Waharoa, who had inflicted the injury, but on his allies the
After the fight, the Ngatirangiwewehi and Ngatirangiteaorere made a claim to the land by setting up "rahui" on the right bank of the Kaituna river, which seem to have been maintained for about two years, and then to have been thrown down by the Ngatitunohopu. The other tribes, also, seem to have seized as their own some pieces near Kawa and elsewhere, but they all returned to their settlements on the Lakes, where the war was still going on, and they do not seem to have thought of venturing to live permanently on any of the
Tapuika, it is clear, never ventured to make any objection to the occupation of the
But the function of the
The Court, therefore, can have no hesitation in adjudging that the Tapuika have no rights whatever as a tribe, on Paengaroa.
There seems no reason to doubt that some of the descendants of Rangitihi, the Ngatitutea, have always been recognised as the owners of that portion of the block which lies to the South of Pakotore. These lands being near to the forest and to the permanent settlements of Ngatitutea at Rotoiti, their occupation, occasional at least, even in Ngatirangihouhiri times, is not improbable.
The title of the descendants of Tutea to that piece will therefore be affirmed by the Court, but the larger portion of the block, to the North, must be adjudged to all the conquorers at the storming of Te Tumu. The taking of that pa completed the re-conquest of these lands on the flat behind it, and made the re-occupation of
This occupation of
The judgment of the Court is that a Certificate of Title will be issued in favor of such persons, not exceeding ten, as the members of the Ngatitutea hapu may agree upon, for that portion of the Paengaroa Claim, which lies South of a line from Korakonui to Karikari.
And that a Certificate of Title to the remainder of the Block will be made to persons similarly agreed on by the Ngatiwhakaue, Ngatitunohopu, Ngatirangiwewehi, Ngatirangiteaorere, Tuhourangi, and their associated hapus. And in both cases, if desired by the claimants, the names of the individuals entitled, as members of these tribes, can be registered as owners under the 17th section of the Native Land Act 1867.
Bounded on the North and North East by the
The history of the first occupation of this place is very clearly related by the first claimants, Rutene Te Eke, Hare Wahie, Wi Pere, and others. It appears that the original proprietor (judging from the tradition given by the claimants and counter-claimants) was a chief named Kiwi Ruapani, who lived about 400 years ago. Little or nothing is known of the people who occupied the district for nearly 200 years after Ruapani. The next person who appears as chief proprietor is Te Nonoi, from whom all the present claimants and counter-claimants—233 in number—have traced their descent.
From these facts, it is argued by
The history of the wars which were carried on by these people's forefathers, extending into the interior and as far as
This claim is opposed by a section of the
Pimia Aata and
With regard to the claim set up by (mataotao), and is dismissed accordingly.
The portion of this block claimed by
The decision of the Court in the case of Wai-o-Hiharore, the investigation of which has occupied so many days, is in favour of
One hundred and fifty years ago, Te Konotu put up a "rahui" (mark) on the Wai-o-Hiharore block, which was protected by
The Court is of opinion that the shares in this and the Wai-o-Hiharore blocks are unequal.