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A Compendium of Official Documents Relative to Native Affairs in the South Island. Volume Two.

Wednesday, April 29. — [Before Chief Judge Fenton and Henare Pukuatua (an Arawa Chief) Native Assessor.]

Wednesday, April 29.
[Before Chief Judge Fenton and Henare Pukuatua (an Arawa Chief) Native Assessor.]

The Court opened at 10 o'clock.

Claim of Heremaia Mautai and others.

The claimants, as previously stated, seek to obtain all that strip of land between Lake Ellesmere and the sea. The case was adjourned on Tuesday afternoon, in order that some settlement might be arrived at between the Government and the Natives.

At the sitting of the Court to-day, Mr. Cowlishaw said that no settlement of the case had been made.

Mr. Williams stated that in the conference on the previous night, between Mr. Cowlishaw on the part of the Natives, Mr. Hall, Mr. Rolleston, and himself, an endeavour was made to settle the matter with fairness to all parties, but Mr. Cowlishaw could not see his way to accept any proposal.

Mr. Cowlishaw: You never made a proposal distinctly.

Mr. Williams said the Crown came to the conclusion that the proper course for them to adopt would be to hand in a document signed by Mr. Hall, on behalf of the Crown, referring this case, under Section 38 of "The Native Lands Act, 1867," for decision by the Court. On this order of reference, it was proposed to adduce evidence following out some facts deposed to by Mr. Mantell, that certain reserves were to be made under the Ngaitahu Deed, which had never been carried out; and in respect to this non-fulfilment of these stipulations, evidence would be given to show what quantity of land the Natives would be entitled to, to make up the amount stipulated in the deed, and which the Crown would consent to hare given to them, upon their signing a deed of release of all their claims to land in the Ngaitahu block. He understood that Mr. Cowlishaw would object to the order of reference being admitted, and he regretted this, because the Government thought it advisable that the matter should be made one of reference to the Court, the Court having full power to decide between the Crown and the Natives. Although the Crown might settle with the Natives in another way, they preferred that page 206the whole thing should be settled by the Court, as such a course would be more satisfactory to the Natives. He begged, therefore, to hand in the following order of reference:—

"Whereas by "The Natives Lands Act, 1867," it is among other things provided that all lands referred to in Section 83 of "The Natives Lands Act, 1865," shall, unless the Government otherwise direct from time to time in respect of any such land, be excluded from the operation of the said "Native Lands Act, 1865," and of the first mentioned Act until the 31st day of December, 1868. Provided that every such agreement between the owners of any such land or person interested therein on the one part, and officers duly authorized to enter into the same on behalf of Her Majesty on the other part, may be referred by the Governor to the Court, and the Court shall thereupon investigate the title to and the interest in such land in the manner prescribed in the aforementioned Acts, and shall make such orders as it is by the said 83rd Section of "The Native Lands Act, 1865," empowered to make. And whereas in the year 1848, a certain agreement was made between certain persons owning land in the Middle Island of the one part, and duly authorized officers of the Government on the other part, purporting to extinguish the Native Title to land comprised in the plan hereto annexed, save over such lands as were thereby stipulated should remain the property of such Native sellers:

"And whereas such reserved lands have never hitherto been effectually and completely defined, and there are doubts whether the said agreement has been absolutely effectuated in law by written instructions:

"And whereas it is expedient to determine all such questions, and finally to conclude the agreement for the purchase of the lands comprised in the said plan:

"Now therefore, the said agreement is hereby referred in accordance with the above-mentioned Acts to the Native Lands Court.

"By command,
"John Hall.

"Christchurch,April 28, 1868,"

Mr. Cowlishaw objected to this course of procedure. He did not see how the Crown could step in in this summary way and stop a case now under adjudication. The case was now before the Court, and he submitted that neither the Crown nor anybody else could step in the middle of it and say "you are to proceed no further." That was in substance what the Crown, through Mr. Williams, was asking the Court to do. It was never contemplated that the Governor should have such a power as this, that after the case had proceeded to a certain stage, the Government could step in, and because it was going unfavourable to them, tell the Court that it must not proceed further with it. Such a proceeding would be an act of the greatest injustice.

Mr. Williams regretted the stand taken by his learned friend. To say that the Crown wished to refer the matter to the Court because they were getting the worst of it, was entirely erroneous, and he trusted that no Native would be found to have such an impression on his mind. The fact was, as he said before, that the Crown wished to deal with the Natives in the most liberal manner, and give to them every acre of land which the Court decided they were entitled to receive. There was not a single syllable in the clause of the Act which could be construed into meaning that the Crown were trying to stop the Court in proceeding. After hearing Mr. Mantell's evidence and the evidence of Natives, the Crown were willing to admit that the reserves intended to be made under the incomplete Ngaitahu Deed had never been carried out. The Crown had a perfect power to make this a matter of reference whether the case had commenced or not.

Mr. Cowlishaw urged that it was not competent for the Crown to step in at this stage of the case.

The Chief Judge That means that we cannot look at this order of reference until the case is finished?

Mr. Cowlishaw: I do not say that. But this order of reference must refer to something after the case.

Mr. Williams said, that whether the case was commenced or not, the Crown had power to bring it before the Court as a matter of reference. It was impossible, before any evidence was given, that the Crown could refer it to the Court. But when it was found that the Natives had a claim to more land than was reserved for them, the Crown wished to refer it to the Court to say what quantity of land should be reserved in addition to that already set apart, and declare that the Ngaitahu Deed should be completed by a release from the Natives.

The Chief Judge said that, as he understood it, the question was whether the order of reference could be acted upon, without notice, in the course of a case which had already commenced. It appeared to him that the only effect which this clause was intended to have was to give the Court a jurisdiction in a certain class of cases which it did not previously possess. Mr. Cowlishaw had remarked upon it as being a very excessive power to entrust the Governor with, but any one who had watched the course of legislation in Native affairs, would find that the legislature had, for the last few years, conferred very great and extraordinary powers on the Governor in these matter. The powers were of a very wonderful kind; and the power conferred by this clause, enabling the Governor to make a case an order of reference was trifling as compared to that given by other clauses of the Act. He did not think he could allow the objection raised by Mr. Cowlishaw.

Mr. Cowlishaw contended that the Crown could not put a stop to the case. Although the power to make it a matter of reference was given to the Governor, the Legislative never intended to make it ex post facto. The Court would admit that ex post facto legislation was the exception. There was nothing to prove that the order of reference was authorized by the Governor. He would propose putting it in evidence that the Governor had never authorized Mr. Hall to refer the matter to the Court.

Mr. Williams said that if Mr. Cowlishaw did not accede to the course proposed, the Crown would be driven to take an extreme course.

page 207

Mr. Cowlishaw said that the Government had asked him, on the previous day, to adjourn with a view to making a settlement. There was a general talk at the conference about giving three acres to every Native, but no offer was made.

Mr. Rolleston stated that he understood from Mr. Cowlishaw, at the conference on the previous day, that he would not object to an order of reference to the Court.

Mr. Cowlishaw said he would have no objection, if it did not prejudice the case. Supposing the Court decided that it must proceed instanta with the order of reference, to the exclusion of all the other proceedings, then the Court would have to adjourn in order that notice might be given to the Natives. The order of reference was merely signed "John Hall," and the Court must, therefore, have evidence before it that the Governor delegated his authority to that gentleman. Mr. Hall did not even sign as being connected with the Government. Mr. Hall added the words after his signature, "A member of the Executive Council of the Colony of New Zealand."

The Chief Judge said the Court was bound to presume that the order of reference was duly authorized by the Governor. The Governor's signature was not necessary; and it was presumed that Mr. Hall acted on his authority until the contrary was shown.

The order of reference was admitted, Mr. Cowlishaw objecting.

The Chief Judge said he would proceed with the case, with increased powers.

Kiriona Pohau recalled and examined by Mr. Williams: We have a reserve at Taumutu. I was not present when Mr. Hamilton made the reserves. I was aware that he made them.

Mr. Cyrus Davie recalled: There were three reserves made by Mr. Hamilton; they were made with the consent of the Natives. I do not recollect the Natives making claim to the spit.

Heremaia Mautai recalled: I know of Mr. Hamilton and Mr. Davie coming to Akaroa to make the reserves. I asked Mr. Hamilton to make a reserve within the boundary of the spit. The land belonged to me alone; and therefore I asked them to make 400 acres of a reserve, extending from the pah.

Mr. Williams put in the Ngaitahu Deed, which, taken together with the order of reference, concluded the case for the Crown.

Mr. Cowlishaw called the following evidence:—

Mr. William White: I am a contractor, and proprietor of the tramway to Little River. I have been down the spit. I became acquainted with it in 1860. There is a Maori pah—called Te Rapa's pah—near Birdling's. There is another at a place called "go-ashore;" and another at Taumutu. I have seen the Natives encamping every summer in various places along the spit, particularly where the Lake goes out.

Mr. Mantell: I understand, from Parliamentary Papers, that Mr. Hamilton had instructions to proceed in reference to the land north of Kaiapoi and Akaroa, and the land in that neighbourhood which I was concerned in, in 1849.

Mr. Cowlishaw submitted that the Crown had failed to prove the extinguishment of the Native Title to this land. The Deed of Conveyance of the land to Mr. William Wakefield, the agent of the New Zealand Company established in London, was illegal, and therefore no title could be derived by it. There was nothing to show what had been sold, or the terms upon which the land had been sold. There was no evidence before the Court to dispute the title of the Natives to the land; and, even supposing the deed were a legal one, the Government had not carried out the stipulations which it contained. The Government had failed to prove that the land had been alienated in any manner whatever.

Mr. Williams said the acts of the New Zealand Company's agent had since been recognized by the Crown, and it must be taken that the Natives conveyed the land to the Crown by the deed referred to. His learned friend's argument, that the deed was a valueless one, would be tantamount to admitting that the present claimants were entitled to share in the whole of the Ngaitahu block. The claimant, Heremaia Mautai, admitted that he asked Mr. Hamilton to make a reserve of 400 acres at Kaitorete, showing that they were not entitled to the spit from descent, habitation, or occupation. The Natives consented to the reserves being made by Mr. Hamilton at Wairewa and Taumutu. He was authorized to say, however, that if the Natives desired it, a reserve would be made on the land in question, which would come in under the order of reference submitted to the Court. The Government left it to the Court to say what quantity of land should be given to the Natives in addition to the quantity already reserved for them.

After an argument between the learned counsel and the Court, as to the deed and the receipt for the purchase-money instalments, the Chief Judge said he would take time to consider his decision.

The Court adjourned for an hour, resuming at 1.45.

The Rapaki Dispute.

Iharaira Tukaha was called, and stated the names of Natives who, it was agreed, should share in the division of the Rapaki reserve.

The Chief Judge said a Crown grant would be issued to the parties mentioned in the list—the land to be made inalienable for ever, except to their heirs, executors, and assigns, appointed under "The Native Land Act."

Claim of Rawiri te Maire.

This was an application on behalf of the Moeraki Natives, for a certificate of title to 54 acres of land, abutting on the Rangiora road.

Mr. Williams appeared for the claimants.

Mr. Alexander Mackay deposed: I am a Native Commissioner. I have been arranging the claims of the Moeraki Natives to certain lands at Kaiapoi. The Kaiapoi Natives agreed to that arrangement in January last, and again in February. In my opinion, it is desirable that the land should be made inalienable to those whom the Natives have decided amongst themselves it should be page 208allotted to. They should have power to lease for 21 years; but I do not think it advisable that they should have power to sell it, with the sanction of the Government.

Several Natives objected to the land being granted to the claimants; but they refused to make the necessary deposit in the way of costs, and withdrew their objection in consequence.

Mr. Mantell deposed: A certain part of the Kaiapoi land was set apart for the Moeraki Natives, at the request of the Natives of Kaiapoi, when the reserve was originally made. The reserve was increased by l000 acres, in order to admit the Moeraki Natives, but this was subsequently reduced to 500 acres, in consequence of the Moeraki Natives having a small reserve at Moeraki.

The Chief Judge said that a certificate of title would be issued to the claimants as soon as a plan was produced.

Some other claims of a similar nature were adjourned until next day.

The Port Levy Reserve.

The list of Natives entitled to the Port Levy reserve was put in and approved by the Court. It was ordered that a certificate of title should be issued.

Mr. Williams appeared for the claimants.

The Court then adjourned until 9.30 on Thursday morning.