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The Pamphlet Collection of Sir Robert Stout: Rare Volume

Appendix. — (A.) Page 1. — The Tribal Right an Integral Part of the System of Land Tenure in New Zealand

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Appendix.

(A.) Page 1.

The Tribal Right an Integral Part of the System of Land Tenure in New Zealand.

The Magna Charta of the New Zealander, as between himself and the British Settler, is the treaty of Waitangi, a treaty to which the faith and honour of the British Crown were pledged in 1840, and the obligations of which have since been again and again re-affirmed by the representatives of the Crown in the colony, and by Statesmen of all parties in the Imperial Parliament. It is sufficient to refer to the noble stand taken on this point by Lord Derby (then Lord Stanley), when Secretary of State for the Colonies :—

"I repudiate with the utmost possible earnestness the doctrine maintained by some, that the treaties which we have entered into with these people are to be considered as a mere blind to amuse and deceive ignorant savages. In the name of the Queen, I utterly deny that any treaty entered into and ratified by Her Majesty's command, was or could have been made in a spirit thus disingenuous, or for a purpose thus unworthy. You will honourably and scrupulously fulfil the conditions of the treaty of Waitangi." (Despatch to Sir Geo. Grey, June 13, 1845. Parl. Papers, May, 1846, p. 70. See also Parl. Papers, July 27, 1860, p. 44. Despatches from and to the Colonial Office, &c. passim.)

The Second Article of the Treaty is as follows:—

"Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand, and to the respective families and individuals thereof, the full, exclusive and undisturbed possession of their lands page 26 and estates, forests, fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession. But the chiefs of the united tribes,* and the individual chiefs, yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them on that behalf." (Parl. Papers, July, 1840, p. 10.]

Upon this article two observations are of importance—
i."The Treaty of Waitangi, in the Maori text, expressly guarantees to the Chiefs their full rights of chiefship. The English form, the original draft of the treaty, was less explicit on the point." (Chief Justice Martin.; Parl. Papers, Aug., 1860, p. 8.)
ii.The term ' pre-emption' was also rendered in the Maori by a word said to mean simply ' purchase;' but independently of this translation, it has been ruled, on constitutional grounds, in an important judicial decision, to mean not "the first refusal," but the exclusive right of "extinguishing the native title." (Parl. Papers, Dec., 1847, pp. 64, &c.)

Among the peculiar usages of the New Zealanders, is that of the tribal possession of land. The Native Secretary sums up the result of an inquiry on this, among other subjects concerning native affairs, conducted in 1856, in these words, "Individual title to Maori land does not exist except in very rare cases, and these doubtful." (Parl. Papers, July, 1860, p. 309).

The Report of the Board of Commissioners is in these terms :—

"Each native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he or his parents may have regularly used for cultivations, for dwellings, for gathering edible berries, for snaring birds and rats, or as pig runs.

"This individual claim does not amount to a right of disposal to Europeans as a general rule, but instances have occurred in the Ngatiwatua tribe in the vicinity of Auckland,

* This refers to a confederacy of chiefs in the northern portion of the northern island, formed by Mr. Busby, in Oct. 1835.

page 27 where natives have sold land to Europeans under the waiver Crown's right of pre-emption, and, since that time, to the Government itself. In all of which cases no after claims have been raised by other members of the tribe; but this being a matter of arrangement and mutual concession of the members of the tribe, called forth by the peculiar circumstances of the case, does not apply to other tribes not yet brought under its influence.

"Generally, there is no such thing as an individual claim clear and independent of the tribal right."

In this opinion 27 members of the Board concurred. Two dissented, one of whom mentioned three cases, but stated that "the individual Maories merely acted as agents for the tribe." (Parl. Papers, July, 1860, pp. 237, 251).

Mr. McLean, the Chief Land Commissioner, grounding his opinion on 16 years' experience in all parts of the country, says (April 16, 1856) :—

"I do not think that any native has a clear individual title to land in the northern island."

His Taranaki experience has an important bearing on the question now at issue. In reference to the adoption of Crown grants for natives, he remarks :—" I do not think it practicable to give Crown grants to natives by defining the boundaries of individual rights to land; it would be productive of quarrels and disputes, as there is really no such thing as individual title that is not entangled with the general interests of the tribe, and often with the claims of other tribes, who may have migrated from the locality.

"I have tried this system at the suggestion of the Bishop, at Taranaki. It gave me considerable insight into the state of native tenure; but in endeavouring to carry it out I found it took about 30 days to define the boundaries of the claims of 40 individuals over an extent of 40 acres; and even then they regarded the arrangement as altogether imaginary, and it did not appear to affect, in the estimation of the natives, the general or tribal right. When I considered the title settled of some individuals on this basis, I found the natives quarrelled amongst themselves about the boundaries, and prevented any definite arrangement being carried out until I afterwards purchased the whole of the tribal claim, in order to secure a clear title.

"I wish every native could get a Crown grant; it would be the means of dissipating many jealousies, and breaking up page 28 their confederacies.... It is absolutely necessary that the tribal claim to such land should first be perfectly obliterated by previous sale to the Government." (Parl. Papers, July, 1860, pp. 303, 304.)

These remarks, are the more noteworthy because Mr. McLean, is now supposed, by persons of high position in New Zealand, to be labouring with the Governor and Native Minister, "to make it appear that the claims of tribal right, and the right of the hapu, rest only on the 'strong arm.'" (Fox's War in New Zealand, p. 27; see also above, p. 4.)

The Constitution Act (15 & 16 Viet., cap. lxxii.) provides only for the purchase "from the Aboriginal Natives" of "land of or belonging to, or used or occupied by them in common as Tribes or Communities," (sect. 73) and the preamble of the Bill which passed the House of Lords, but was withdrawn on the motion for its second reading in the House of Commons in 1860, recites as a reason for further legislation, that in the above Act "No provision is made in respect of land belonging to any of the said Aboriginal Natives, otherwise than as Tribes or Communities."

It may be fairly inferred that the omission arose out of a deliberate design, whether of policy or from a better knowledge of New Zealand tenures, and was not an oversight; for, in the Land Claims Ordinance of June 9, 1841, which must have been in the hands of the framers of this bill, "purchases or pretended purchases" from individuals are recited as having been made previously to the treaty of Waitangi.*

In January 1842, Lord John Russell wrote:—"It would appear to be the custom or understanding of the natives, that the lands of each tribe are a species of common property, which can be alienated on behalf of the tribe, only by the concurrent acts of its various chiefs." (Parl. Papers, May, 1841, p. 52.)

In disallowing a New Zealand Act, which will presently be adverted to, Lord Carnarvon in May, 1859, remarks:—

* Be it therefore declared . . . That all titles to land in the said colony of New Zealand, which are held or claimed by virtue of purchases, or pretended purchases, gifts, or pretended gifts, conveyances, or pretended conveyances, leases, or pretended leases, agreements, or other titles, either mediately or immediately, from the chiefs or other indivduals or individual of the aboriginal tribes inhabiting the said colony, and which are not or may not hereafter be allowed by Her Majesty . . . . are, and the same shall be absolutely null and void (Sec. ii), (Parl. Paper), Feb. 28, 1842, p. 6).

page 29

"I perceive, however, that the proposed scheme has a further object, and that it is intended to furnish a means of ultimately enabling individual colonists to purchase the landed property granted in severalty to individual natives. . . But such a change I conceive to be in the highest degree unadvisable. The present system of land purchase appears as far as I can judge, to be understood and acquiesced in by the natives, and to be working well for the colony."

"On the other hand the system of individual purchase is, to say the least, opposed to the spirit of the New Zealand Government Act (vide supra), and it is open to important objections in point of policy .... I hold it, therefore, far more advisable that Government should purchase territories than that individuals should purchase properties, &c." (Parl. Papers, July 27, 1860, p. 172.)

The testimony of an old and experienced colonist, whose position gives his statements and opinion the weight of authority, is decisive as to the practice of the Government in this respect :

"There is no doubt that on previous occasions purchases may have been effected from hapus, or even from individuals, with only the tacit consent of the tribe; but such cases are exceptional, and, as a general rule, the Government has always made the head chief a party to the negociation, and paid the whole, or a great part, of the purchase money to him, on behalf of the tribe. No instance previous to the Taranaki purchase, has ever occurred in which land has been purchased by the Government from a hapu, or from an individual, against the remonstrance of the head chief. See the preceding extract from Mr. Clarke's letter.* A return of any such purchase, if it existed, has been moved for in the House of Representatives, and the mover has been told by the Government that the return would be simply 'nil,' and no return has yet been made. The purchase from E. Teira,. which has led to this war, is believed to be the first attempt to buy from individual natives or from a hapu, against the personal remonstrances of the chief of the tribe, and the chief of the hapu." (Fox, p. 25.)

In a despatch dated Oct. 14, 1858, Governor Browne himself quotes at length and as conclusive upon the subject, the evidence of Mr. Merivale before a Committee of the House of Commons in 1857, to the effect that "In New

* Cited above, p. 13.

page 30 Zealand, by the interpretation put upon the treaty of Waitangi, by the Home Government, it was considered that the New Zealand tribes had aright of proprietorship. . . . like landlords of estates, for which the Crown was bound to pay them." (Purl. Papers, July 27th, 1860, p. 18. See Report of the Committee of the House of Commons, July, 1857, p. 10.) It is therefore, to say the least, somewhat strange that he should now write, "This is a subject of great difficulty, and the practice varies in different parts of New Zealand." (Parl. Papers, Aug. 1860, p. 4,) and again, "the right to sell land belonging to themselves without interference on the part of the chiefs (not having a claim to share in it,) is fully admitted by Maori custom." (Governor Browne to Sir E. B. Lytton, 29 March, 1859, in Fox, p. 27.) The weight of evidence" is therefore conclusive that with exceptions too trivial to touch the general question, the tribal right is and has hitherto been uniformly recognised as an integral and inseparable part of the existing system of land tenure among the natives of New Zealand. The principal chief is the legitimate mouthpiece and representative of the tribe; and though his influence will vary with the strength of his individual character, he exercises, as chief, a right which savours of a seignorial or manorial right: but that right reaches no higher than a principle of land tenure.

It follows that it constitutes no part of "the rights and powers of sovereignty" ceded to Her Majesty by the treaty of Waitangi, for it floats beneath all questions of sovereignty, being in fact, a native title secured to the Maories so long as they desire to retain it, by the selfsame instrument which ceded the sovereignty, and under which provision is made for the extinguishing of the same, by purchase, by the Queen alone. When the Governor, referring to Kingi's opposition to the sale and resistance to the survey, addressed to the General Assembly the words :—" I felt it to be my duty to repel this assumption of an authority inconsistent with the maintenance of the Queen's Sovereignty, and the right of the proprietors of the land in question,"—he mistook the real nature of the question he had to deal with, both in reference to the sovereignty and the proprietary rights of Teira.