Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.
I can find nothing which I think the Court ought to rely upon until about the year 1815, when Ngatipaoa appear to be comfortably settled at Mokoia, a place on Tauoma, the piece of land given to Kehu; and Apihai's people appear to be living principally at Ihumatao and Mangere, cultivating also at Okahu and on the shores of Waitemata. It is also alleged by Heteraka and his friends that they cultivated there at the same time. The only witnesses who say that they themselves personally lived and planted there at this time are Heteraka, Haora Tipa, and Taitu. Heteraka's occupation can. page 68have no weight in this suit, for his father had married a Ngatiwhatua woman, and he would have an undoubted right to cultivate on the estates of his mother's tribe at his will so long as he remained with them—a right which he would lose as soon as he cast in his lot with a strange tribe. Taitu and Haora Tipa pointed out to the Court, when it visited the estate, portions of land, comprising together about one-fourth of the whole property, or 150 acres, as that which they with their own hands cultivated. Now there was certainly, to say the least, great exaggeration in these statements. But, supposing that they cultivated in a settled and domiciliary manner for some period, I do not understand that any ground for the right to do so is set up except the conquest by Kapetawa, which I have already stated that the Court does not think has any characteristics beyond that of a raid for revenge for "personal affront." Certainly it cannot suffice in this Court to create any" take" for his descendents to commence cultivating a century afterwards. Apihai alleges that he and his people were in permanent occupation at the same time, but he and his witnesses all deny that any Ngatipaoa were cultivating Okahu (including in that name the whole estate) along with them. I think the truth is that neither party had their real domiciles at Okahu at this period, but that Ngatipaoa (including Heteraka, for he appears to have been living with them) lived at Mokoia, and Apihai and his people at Mangere, as their head-quarters, and that both parties came over to Waitemata waters for fishing purposes, and planted food at Okahu simply for such purposes—the former in a very small way, and the latter more largely, for it must be remembered that the tribes were in a state of perfect amity at this time. The Rev. Dr. Maunsell gave important testimony as to the habits of Maoris cultivating the lands of other tribes while in a state of friendship, and Hotereni Taipari gave some remarkable instances of the same custom: Ngatipukeko, now living on the lands of Te Parawhau, at Whangarei; Ngatipukenga, on the fends of his own tribe, Ngatimaru; and his own tribe, formerly living-on the territory of Ngatikarowhai. I do not remember that any claims have been established in this Court solely on the ground of modern occupation without reference to some "take" of old days; and the Ngatipaoa seem to admit this rule, for they set up Kapetawa's conquest, which, in the judgment of the Court, does not suffice.