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A compendium of official documents relative to native affairs in the South Island, Volume One.

No. 23. — Lord John Russell to Governor Hobson

No. 23.
Lord John Russell to Governor Hobson.

Downing Street, 28th January, 1841.

Sir,—

Referring to my Despatch No. 1, of the 9th December, 1840, and especially to that part of it which relates to the protection of the aborigines of New Zealand, I have now to convey to you the following additional instructions on that subject; they are the result of the consideration which, since the date of that Despatch, it has been in my power to give to this very arduous and important branch of the duties of the Executive Government in reference to that Colony.

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1.Her Majesty, in the Royal Instructions under the sign-manual, has distinctly established the general principle that the territorial rights of the Natives, as owners of the soil, must be recognized and respected, and that no purchases hereafter to be made from them shall be valid unless such purchases be effected by the Governor of the Colony on Her Majesty's behalf. It remains, however, to be stated, that the lands of the aborigines should be defined with all practicable and necessary precision on the general maps and surveys of the Colony. The Surveyor-General should also be required, from time to time, to report what particular tract of land it would be desirable that the Natives should permanently retain for their own use and occupation. Those reports should be referred to the Protector of Aborigines, and the lands indicated in them or pointed out by the Protector as essential to the well-being of the Natives should be regarded as inalienable, even in favour of the local Government, after the Governor, with the advice of the Executive Council, shall have ratified and approved the surveyor's reports, and the suggestions of the Protector. Such inalienable tracts should, as far as possible, be defined by natural and indelible landmarks.
2.It would appear to be the custom or understanding of the Natives that the lands of each tribe are a species of common property, which can be alienated on behalf of the tribe at large only by the concurrent acts of its various chiefs. But this statement of so obscure a fact may be inaccurate, and it may possibly be the prevalent opinion amongst some of the tribes that an individual has a valid title to a particular tract, or at least has the power of disposing of it for his own benefit. Whatever may be the custom or prevailing notion amongst them regarding the right of property in land and the right of alienation, a law should be enacted declaring the absolute invalidity of any conveyance or contract or will for the disposal of land by any Native chief or chiefs, or by any individual Native, when the object of that contract or conveyance or will is to transfer to any person of European birth or descent the land itself, except as thereinafter excepted. The law should also forbid the taking in execution of any such land, or interest in land, at the suit of any person of European birth or descent. These prohibitions may be qualified by an exception authorizing such contracts, conveyances, wills, or executions, when expressly authorized by the Governor on the report of the Protector of Aborigines.
3.As often as any sale shall hereafter be effected in the Colony of lands acquired by purchase from the aborigines, there must be carried to the credit of the Department of the Protector of Aborigines a sum amounting to no less than 15 nor more than 20 percent in the purchase money, which sum will constitute a fund for defraying the charge of the Protector's establishment, and for defraying all other charges which, on the recommendation of the Protector, the Governor and Executive Council may have authorized for promoting the health, civilization, education, and spiritual care of the Natives. Such sums, when not immediately required, must be invested in the best securities which can be obtained in New Zealand or in New South Wales, in the name of the Governor. If at any future time the fund should be found to exceed every reasonable demand for this service, any ulterior augmentation of it may be suspended until the want of additional funds for these purposes shall become apparent, or shall be reasonably anticipated. But, generally speaking, the proceeds will be probably expended within the year.
4.The Commissioner who is to be appointed for investigating the titles to land may, in any case where such a measure shall be found expedient, be invested with an effectual and summary jurisdiction for determining controversies regarding land which may arise between different tribes, or between different members of the same tribe.
5.A law should be passed constituting the Protector of Aborigines the advocate or attorney ex officio for the Natives in all suits, prosecutions, and other proceedings to which they may become parties in any of the ordinary tribunals of the Colony; and every such advocate or attorney, and every person acting by deputation from him, and in his name, should be invested with the most ample facilities for representing and acting on behalf of such client.

It is of course impossible for me to do more than indicate in general terms the rules which should then be established, and the principles on which they proceed. I confidently rely on your own zeal and ability to carry those principles into effect in the best manner which the actual circumstances of the case may admit. The Protector of Aborigines will, at the close of each half-year, render to you a full report of his administration and proceedings, embracing with the utmost possible exactness every topic connected with the increase or decrease of the numbers, the social and political condition, the education, and the intellectual, moral, and religions improvement of the objects of his care. No payment on account of the Protector's salary must on any account be made so long as any such report is in arrear. You will transmit each report as it reaches you to Her Majesty's Government, accompanied by all such additional statements and remarks as it may appear to you to require or to suggest.

I have, &c.,

J. Russell.

Governor Hobson.