Aureretanga: Groans of the Maoris
For the latest instance brought to my knowledge of the hardships inflicted on Maoris I am indebted to members of both Houses in New Zealand who forwarded to me copies of a very remarkable Bill introduced “to provide for a re-investigation into the Native Title to Lands known as Owhaoko and Kaimanawa—Oruamatua.” The Bill was brought in (1886) by Mr. Ballance, Native Minister in a ministry of which Sir Robert Stout was Prime Minister and Attorney General.
The preamble declared that the Governor on the 4th Feb., 1880, ordered a re-hearing in the Native Lands Court of the claim of Renata Kawepo and others to the Owhaoko land. The re-hearing was ordered to take place within three years from 31st. October 1877.
The Order recited that “at a sitting of the Native Land Court … held at Porangahau on 2nd Dec., 1876. the claim of Renata Kawepo and others to Owhaoko was heard and decided and that a certain order was on 31st Oct., 1877, thereupon made by the Court; “that thereupon, 31st Jan., 1878, application was made “on behalf of certain aboriginal natives” for a rehearing of the claim, and the Governor under powers of sec. 58 of the Native Land Act, 1873 (Donald McLean's Act) ordered a re-hearing. The preamble continued thus, “And whereas the said period of three years from the 31st Oct., 1877, was allowed to elapse without the rehearing so ordered being had, though in pretended compliance with such Order the Native Land Court afterwards unlawfully assumed, after its authority under the said order in Council had expired, to deal with the said decision:
And whereas it would be just and right that the benefit of the re-hearing ordered should not be denied to the natives interested, by reason of the omission or delay aforesaid: And whereas by decision of the Native Land Court acting under the Native Land Act 1873 land known as Kaimanawa Oruamatua was on evidence before it, apart from any voluntary arrangement, declared to be owned by certain natives whose names were entered on a memorial of ownership as the owners of such land; and whereas in the evidence upon which such decision was arrived at it was stated and not disputed that Natives besides those so declared to be owners had a claim on the land and there is good reason to suppose such evidence was true;—and whereas application for a re-hearing in respect of the said decision was made, but by reason of an insufficient knowledge of the premises not granted:
And whereas it would be just and right on the premises that there should be a re-investigation into the title to the said lands:— Be it therefore enacted,” &c.
The second clause declared the lands named to be within the jurisdiction of the Native Land Court and provided against giving the benefit of the Act to any Natives already recognized as owners.
The Bill itself consisted of two pages only, but attached to it was a memorandum by Sir Robert Stout, narrating the facts which led to page 158 the introduction of the Bill. The memorandum extended to twenty-six pages, and must be astounding to any one inclined to adopt the opinion that the Maoris have been treated with exceptional kindness.
Bad as the Owhaoko case is, it cannot be put forward as unusually harsh or unjust. Extracts already made from speeches of Dr. Pollen, Mr. Sheehan, Mr. Bryce, and others, show that, whether from malice or proclivity to blundering, injustice to the Maoris was common; and Dr. Pollen went so far as to assert in 1873 that they had been “subjected for years” to a “system of fraud under the authority of the law.”
The specialty in the Owhaoko case is that it was carefully analyzed by a lawyer, the Prime Minister of New Zealand.
It must be borne in mind that usually when natives applied to have their lands brought under the operation of the Court there was an intended lessee or purchaser in the background, and that he had much to do with promoting the case.
Sir R. Stout's memorandum declared that in September, 1875, a Native Land Court was held at Napier, under circumstances which made it impossible for some of the natives (interested) to be present; that evidence given in Court showed that there were such interested natives; that in December, 1875, some of them petitioned for a hearing; that, owing to the absence of maps, or other causes, no order was made at the particular time at which it was afterwards pretended that an order had been made; that contradictory entries were made in the Minutes which purported to record the proceedings of the Court; that again in January, 1878, Maoris applied for a hearing as to their title; that on the 26th March, 1879, a re-hearing was sanctioned by Sheeban, the Native Minister, but that on 2nd April, 1879, he arrested it; that Sheehan being out of office in 1880, and Bryce being Native Minister, the re-hearing applied for in January, 1878, was directed on Mr. Bryce's recommendation, by the Governor on 4th of February, 1880; that it was fixed for 30th June, 1880; that on the 10th June it was postponed by a notice giving no reasons, and fixing no other date; that various communications passed subsequently between officials of the Land Court Office and the solicitor employed by the lessee, who opposed the re-hearing; that some of those who had in January, 1880, applied for a re-hearing were persuaded to sign a paper of withdrawal (of their application), which was sent to the Court in October, 1880, by the solicitor who opposed the re-hearing, and thus seemed to act for both sides; that some Maoris whose names appeared in the withdrawal wrote in November, 1880, that they had been “cajoled” to sign their names to it; that another wrote that his name had been appended “secretly without his concurrence;” that, though the Governor's order in Council directed the re-hearing within three years from 31st October, 1877, it was not so held, but that on the 1st November, 1880, the counsel for the lessee who opposed the re-hearing, informed the Court that he “held a retainer from the natives” who had “applied for the re-hearing,” and that he was “instructed to withdraw their page 159 application;” and that on the 3rd November, 1880, the Judge dismissed the case.
Then came appeals to the Native Minister which (p. 17 of Mem.), appear not to have been replied to.
But the case was not clear. The Judge who had on 31st October, 1877, signed the Order of the Native Land Court about Owhaoko had referred to an order in the case made at a sitting of the Court on the 2nd December, 1876, and no such order had been made. On the contrary, there was an entry about that time (p. 417 of the Minutes and page 5 of Stout's memorandum), “Owhaoko: No order, Map to be altered and put into Court.”
But, though ownership of natives may be brushed aside, as in the case of Heremaia Mautai at Christchurch in 1868, or that of the Dunedin Maori Reserve, the titles of colonists must be more carefully considered, and a case was stated for the Supreme Court in order to ascertain under that august sanction whether the Judge of the Native Land Court could make an order in the case.
If any one imagined that the Maori petitioners for a re-hearing would profit by the scrutiny of the Supreme Court, he was wofully disappointed.*
The judgment of the Supreme Court was a dry decision that “where an order has been made for a re-hearing, and the applicants subsequently abandon their application, the Native Land Court has power to affirm the original decision.” (Stout's Mem: p. 19).
This seems, as an abstract statement, irrefragable; but, as far as can be gathered from it, the particulars of the Owhaoko case were not even put before the Court. The singular circumstance that to the “document cancelling the application for a re-hearing” names were affixed without the knowledge of the supposed signers, and that the document was transmitted to the Native Land Court Judge by the the lawyer employed on the other side, cannot be deemed to have been sanctioned by the terms of the judgment of the Supreme Court.
Rawiri Kahia's letter of 10th November, 1880, affirming that his name “had been appended without his knowledge,” may not have been seen by the Court.
According to Sir Robert Stout's summary of the case, no order had been made at all by the Native Land Court, and the applicants had not abandoned their application for a re-hearing.
The concluding words of Sir Robert Stout's Memorandum were:—
In my opinion, no valid orders regarding the Owhaoko blocks have ever been made by the Native Land Court.
That, as regards the Kaimanawa-Oruamatua block, the order was improperly made; for the Court was informed that other persons had interests in the land.page 160
That the Native Land Court—first, in adjourning the Court sine die; second, in not meeting until after the three years mentioned in the order in Council had expired—namely, on the 1st November, 1880; and third, in dealing with the question of withdrawal of the re-hearing in the absence of the natives concerned, acted both improperly and illegally.
“In order to do justice to the Natives concerned, the Government ought to introduce a special Bill ordering a re-hearing of the whole of the blocks.
“I do not care to comment upon the conduct of the various persons whose action I have had to allude to in this Memorandum.
“The facts are sufficient without comment. Let me only add that if this case is a sample of what has been done under our Native Land Court administration, I am not surprised that many natives decline to bring their land before the Courts. A more gross travesty of justice it has never been my fortune to consider.
“Premier's Office, Wellington, 18th May, 1886.”
* We must remember how Taiaroa and Parata strove to cause the Waimate and Parihaka Land Question to go before the Supreme Court; how the West Coast Commissioners “refused to hear counsel” as to the validity of the confiscation; how, when an appeal to the Privy Council seemed imminent in the Dunedin Maori Reserve case, a sum of money was paid by the Government to quash the proceedings.