III. Occupation.

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 Ngatipaoa were living at Mauinaina, and were at amity with Apihai and his tribe, individuals of Ngatipaoa used to come over to these waters, and make small cultivations, for fishing purposes, at Okahu. The other side deny this: "horerawa," Apihai says. But whether they did or not is of little consequence—the possible grounds for a right so to cultivate not having been established; for, as previously observed, the cultivation of land by this generation must be taken merely as an evidence of a right obtained by the cultivating or conquests of antecedent generations.

The residence of Ngatihura and Ngatipare hapus of Ngatipaoa scarcely needs remark. There was, in our judgment, not the slightest evidence or appearance of any intention or thought of asserting a right when these people went to Okahu, or that their going was founded on a right. If any such notion had been in the minds of Ngatipaoa it is not escaped prisoners of war like Mohi Te Puatai, or returned Ngapuhi slaves such as Natanahira Te Urupa, or second or third-rate men like Hemi Kaihi, who would have been sent, but some powerful and influential chief like Patene Puhata, who, as we know, conducted Mr. Clarke's attempted survey. These acts of cultivation and residence were of a trivial and transitory character, much less worthy of attention than those of Maki, whose case the Court has already dismissed, although backed up by well-known and admitted ancestral relationship. Like him, when they were "sick unto death," they generally moved, after the Maori custom, to die on their own page 88land at Waiheke or elsewhere j or, if they died on the place, they were not buried there. In fine, their residence had all the manifestations of a sojourn, and of nothing else. Moreover, sundry other persons have lived there both before rind since the time of Hongi—some of them nearly all their lives, such as Te Keene Tangaroa, Hapimana Taiawhio, Te Hamara Tauhia, Pairama Ngutahi and Watarauhi Tauhai, who were intimately related to Apihai'a people, and yet recognise Maori custom, and set up no claim. Other persons, too, of strange tribes, such as Raniera Taupape, of the Rarawa, in the North; Ruka Taurua, of Ngatitipa, in Waikato; members of the Ngaiterangi, of the Waikato tribes, of Ngatiporou, and even people of the South Sea Islands, and a considerable number of Te Arawa, who are there domiciled at this present time, have been residing there, but make no pretence of founding a claim to the land upon such occupation. The truth is that, from its proximity to Auckland, Okahu is a convenient place for natives to live on who desire to have intercourse or trade with Europeans; and Apihai seems to have extended free and unquestioning hospitality to all who chose to come.

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 Taurarua to Te Whau affords, to my mind, no evidence that the sale was a rightful one; on the contrary, I think it was not. The sale of Taranaki by Potatau, to which Mr. Gillies compared the sale by Ngatipaoa, was much better justified, for we have had evidence in this case of a conquest made by him of the people of that country; but even that sale did not avail the Government much.

The "Kupu" of Herua as it is called—that is, the permission alleged to have been given by Kahukoti—is put forth by Ngatipaoa as the reason why they have during more than a quarter of a century made no protest against Apihai's continued occupation of this land, and that they put it on one side now simply because Apihai is claiming a Crown grant. It is not a matter of much moment, but it certainly is remarkable that neither this permission nor anything connected with it, or with the land, was alluded to at the return visit of Kahukoti to Okahu, or on the occasion of Haora Tipa visiting Apihai and presenting him with the paddle and tomahawk, representatives of his dead relations, or on the other numerous occasions when the chiefs of the tribes saw each other. Heteraka seems to have treated the " Kupu" with less respect, for he agitated page 89about his claim in early days, but the Court is not told whether he connected Ngatipaoa with it.