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The Pamphlet Collection of Sir Robert Stout: Volume 74

The Alleged Trust

The Alleged Trust.

Firstly, then, I proceed to deal with Finding 1—that there was a trust over Subdivision XIV in 1892. The following are undisputed facts and were treated as admitted before the Commission. Subdivision XIV is one of the parts into which the Horowhenua Block was divided by the partition of 1886—pursuant to which partition the land was, for the first time, granted in freehold tenure, and Land Transfer certificates issued for the several subdivisions. Previously to 1886 it was tribal land held under a Native Land Court certificate of title dated 1873. On the back of the certificate appeared the names of all the Muaupoko tribe, Kemp's amongst them, as the beneficiaries who would be entitled to have the land divided among them on partition. In the body of the certificate appeared the name of Kemp alone as what is called the " nominal owner," who, until partition, had certain statutory powers of leasing and management, in respect of which he was trustee for the tribe. At the partition of 1886, according to practice, the Native Land Court certificate was destroyed, in token of the extinguishment of the tribal title and of Kemp's powers and duties in respect thereof, and the Court ordered in what names and as to what subdivisions respectively the new Land Transfer certificates were to issue. The certificate for No. XIV was, in accordance with the order, issued to Kemp, and he is therefore legal owner of that subdivision; so much is undisputed.

I contend that Kemp acquired Subdivision XIV free from any trust and as his own absolute property, on the full understanding that this was part of his share on partition of the tribal estate, The Commissioners, however, are of opinion that Kemp was allowed to take Subdivision XIV on an understanding that he was to hand it over to the descendants of Te Whatanui, and that, on the latter declining it, he was bound to hand it back or account for it to the Muaupoko. The undisputed facts on this point are as follows: Kemp had some years previously taken upon himself as chief to promise Sir Donald McLean that when the subdivision of the block took place the Muaupoko would bestow upon the descendants of Te Whatanui a slice of twelve hundred acres in settlement of an ancient tribal feud. The Muaupoko ratified Kemp's promise; and at the partition of 1886, by their common consent, Subdivision IX was, by an order dated December 1st, allotted to Kemp, practically in trust for the descendants page 5 of Te Whatanui, who were satisfied with the gift. Previously to December 1st, Subdivision XIV had been offered by the Muaupoko to the descendants of Te Whatanui, but refused by them. So much is undisputed. I have also mentioned that No. XIV was allotted by the Court to Kemp as legal owner. But the Commissioners add—and this is entirely a question of dates—that on the day when the Court awarded No. XIV to Kemp the offer of it by the Muaupoko to the descendants of Te Whatanui was still open, and that Kemp accepted the nominal ownership on the understanding between him and the Muaupoko that he was to convey Subdivision XIV to the descendants of Te Whatanui; and that on the offer of that subdivision being subsequently refused, there was what is called a resulting trust to the Muaupoko tribe.

But, as a matter of fact, the order allotting No. XIV to Kemp was made on the 3rd December, two days after No. IX had been allotted to him as the portion for the descendants of Te Whatanui, The dates on which the orders as to IX and XIV, respectively, were made are thus decisive on the question whether Subdivision XIV was given or merely entrusted to Kemp. No. XIV was allotted to Kemp after he had already been entrusted with No. IX for the descendants of Te whatanui. Fortunately we still have the Court records giving the dates of the two orders, and these are corroborated by the evidence of Mr Wilson, the judge who made the orders, a witness described in the report as "above suspicion."

The minute book (Vol. VII, p. 195) shows that Subdivision XIV was taken last, as its number implies, on December 3rd. No. IX is mentioned three pages earlier (p. 192), the minutes being continuous; and the date is December 1st. The reference to No. IX is made clear by the description of its boundaries and its position in relation to the Hokio stream; and the same minute has the following important note-it mentions that Subdivision IX had been awarded in the morning under the name of No. III; and on referring to the morning minutes (p. 188) we find under the head of No. III a block of identical acreage "to be ordered" to Kemp for the "purpose of fulfilling an agreement between himself and the Government." Thus, the fact that the after-noon minute refers to No. IX being made certain by the reference to the Hokio stream and so forth, the further fact that the same minute expressly mentions the block named III in the morning and identifies It with No. IX together prove that both minutes refer to that sub-division.

Judge Wilson is, by a fortunate coincidence, able to speak to the accuracy of the numbering in the minute-book (see p. 134). He states that, owing to a misunderstanding, into which it is unnecessary to enter, the clerk took upon himself to alter the numbers, and that, before drawing up the orders, he (Judge Wilson) "made a complaint, and the numbers were set right again." A striking confirmation of page 6 this testimony is afforded by the record in the Native Office, in which, in a column opposite to the improperly altered numbers, the true order,—No. IX coming third and No. XIV last,—is set out in Judge Wilson's own handwriting, initialed by him; and, besides the minute-book, Mr. Wilson, as stated in the Report, gave testimony to the effect that No. XIV was cut off last.

The Commissioners have seen how decisively the fact that IX was allotted before XIV negatives the assumption that Kemp received XIV in order to give it to the descendants of Te Whatanai. They suggest that the subvivision cut out on the morning of December 1st under the name of No. III was not No. IX, as the minutes show, but No. XIV. (I should mention that the acreage in the two subdivision is the same.) It is necessary for them, therefore, (1) in the first place to aver that Judge Wilson and the minutes are inaccurate, and (2) in the second place to explain, on the assumption that Subdivision III mentioned in the minute of December 1st is really Subdivision XIV, by what error there came to be inserted in the afternoon minute as explanation that No. III was No. IX, and, further, how it is that we find, eight pages later in that continuous record, and under date of December 3rd, a minute of the making of an order in respect of Subdivision XIV.

Without attempting to account for these two entries—inexplicable on their hypothesis—the Commissioners are content with a general charge of inaccuracy against the record, supported by citations from the evidence.

But at this point I must emphatically complain that the witness quoted by the Commissioners to impugn the minute-book said the exact contrary of what the Report attributes to them. As, during my address, I shall have to complain of three or four more similar and not less important misquotations, I hasten to add that I desire to impute nothing more to the Commissioners than extreme carelessness, although these serious errors are none the less disastrous to me.

In the first place they quote Judge Wilson as (to use the commissioners' own words) "practically saying that the minutes are valueless"; on the contrary, in the passage referred to (p. 133), he says "There is no doubt about the accuracy of the notes. . . . . I have every confidence in the minute book." Further, according to the Commissioners, he says that the clerk, in taking the minute (to quote the words of the Report) "omitted what he thought was immaterial." In the first place this is irrelevant, as what the Commissioners have to explain is not omissions but insertions; and, in the second place, it incorrectly gives the effect of Judge Wilson's evidence which expressly states that the clerk who took down the minute would be correct as to the dates and purport of the orders—the only matter in issue between the Commissioners and myself—and that the only omission mentioned by Judge Wilson was as to remarks made it Court, which of course are immaterial for our present purpose.

page 7

The most serious misquotation, however, of Judge Wilson is that, while stating that he complained as to the wrong alteration of the numbers of subdivisions by the clerk, which I have already mentioned, the Commissioners entirely omit to state that it was in consequence of this very complaint that the numbers were set right before the orders were issued.

A further serious misrepresentation of the evidence is where the Commissioners cite (to use the words of the Report) " Mr. McDonald and other witnesses " as stating that Subdivision XIV was cut off not last but third. This is directly contrary to the fact. Mr. McDonald (p. 75) distinctly affirms that No. XIV was (in his own language) "the last disposed of by the Court"; and, again, (p. 79) in answer to the question "If the minute-book says that Allotment IX was dealt with before XIV you will accept that record ?" replies: "I am certain that it was." In other words Mr. McDonald affirms his independent recollection that No. XIV was dealt with last.

Himiona Kowhai, called by Mr Stevens, said (p. 169), in answer to a question suggesting the converse, that No. IX was cut off before No. XIV. And, speaking generally, after a careful perusal of the evidence, I cannot find that any witness has said what the Commissioners allege.

I have thus proved that the Commissioners, in seeking to upset the evidence of Judge Wilson and the minute-book, have, in the first place, not even attempted to account for the entry as to Subdivision XIV, or the reference in the minutes to No, IX identifying it with No. III, whilst in the second place, they are wrong in stating that Judge Wilson's recollection is contradicted by the witnesses.

The following passage from the examination of Judge Wilson (pp. 138-9) concisely sums up the matter :—

By Sir Walter Buller :—

Q. The minute-book is defective and somewhat meagre; but is not this the right interpretation of the minutes as suggested by the Chairman of the Commission. . . . The Court had to adjourn to the 1st December. On that date the, application was made for Subdivision IX. When that took place Mr Lewis made a deposition in regard to it. Objectors were challenged; none appeared. In order was made in favour of Kemp for 1200 acres to be delineated on the plan IT on the tracing shown and numbered IX, and later on, on the same day, an application was made by Kemp for 1200 acres in his name, giving the boundaries. Did not these orders relate to the same block as having been set apart and given to kemp to be conveyed to the descendants of Te Whatanui ?

A. Yes; and up to that time I had never heard of any other piece for them.

Q. I understand you are perfectly sure that when, later on in the sitting, No.XIV was awarded to Kemp, it was given to him for himself, to do what he liked with

A. Yes.

I have now shown from the evidence that No. IX was awarded to kemp specifically to be given to the descendants of Te Whatanui, page 8 and that No. XIV came on subsequently. This difficulty, therefore which the Commissioners themselves perceived and have failed to surmount, is fatal co the alleged trust.

But Judge Wilson, in his above quoted evidence, distinctly affires that it was stated in open Court and understood by all that No. XIV was to be for Kemp himself. Realizing the importance of his evidence the Chairman addressed to him the following caution : " If you recollection is correct, as to No. XIV, that is Kemp's absolute property and he can make good the title to whom he leases or mortgages it. A very great deal may depend on your recollection of this matter. As you are aware, Sir Walter Buller has taken of mortgage and lease over this land, and it may be that the whole validity of this lease and mortgage may depend on your recollection being correct. I therefore ask you to charge your memory of thoroughly as you can, so that we may have it beyond all doubt. Before asking you I will read what Kemp said about this." After this warning, and after hearing Kemp's evidence read, Judge Wilson stated in the most positive and decisive manner that Subdivision XIV was awarded by him to Major Kemp, with the general consent of the tribe, not as trustee but as absolute owner.

It is true that the Commissioners (on page 3 of the Report) appear to doubt Judge Wilson's recollection of the facts on the ground that shortly before the Commission sat, on being questioned by the Under Secretary, he had sent to that officer a telegram with which his [unclear: late] evidence before the Commission was inconsistent, and that this telegram was sent " presumably after consulting his notes." But must protest against the use of this telegram, seeing that it was not in evidence before the Commission or submitted to the inspection of counsel, and that, without affording the witness an opportunity of explaining the apparent inconsistency, the Commissioners have choses to attach more importance to this utterance than to his [unclear: subsequent] careful and emphatic testimony. I especially complain of the suggestion that the telegram was sent after consulting his [unclear: note] seeing that Judge Wilson expressly stated, both in the Supreme Court and before the Commission (p. 133), that on ceasing for a time to be judge he had destroyed all his notes.

I shall not further elaborate the question of whether the supposed trust was created in 1886, since the dates of the orders proves this [unclear: is] have been impossible. I desire, however, to point out an important misquotation on this point. The Report remarks (p. 14): "There is the evidence of five leading natives of Kemp's party who were [unclear: called] to prove the land to be his, each of whom proved conclusively, if [unclear: their] evidence is to be believed, that it was not so." But this is [unclear: diametrically] opposed to the facts: so far from these five witnesses supporting the alleged trust, their evidence so far as material, is as follows:—