Title: An Epitome of Official Documents Relatives to Native Affairs and Land Purchases in the North Island of New Zealand

Author: H. Hanson Turton

Publication details: George Didsbury, 1883, Wellington

Part of: He reo nō ngā whakaritenga me ngā pukapuka here / Language of agreement and obligation

License: Creative Commons Attribution-Share Alike 3.0 New Zealand Licence

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The specific duty imposed upon me by Parliament was to decide whether any compensation was due to the Province of Wellington by the colony in respect of the Native reserves made by Mr. McLean in the Manawatu Block.

Upon careful consideration of the demands of the province for such compensation, of the documents connected with the history of the case, and of the evidence given before me, I came to the conclusion that the provincial authorities had failed to make out their claim. But the same reasons which led me to this conclusion also led me to think the province was equitably entitled to relief in respect of certain cash payments made out of its Treasury in connection with the purchase of the block, which should be defrayed in the first instance by the colony, and then charged against the province in the same way as the cost of purchases from the Natives is now chargeable by law.

I was about to make a formal award to this effect when a question arose in my mind as to whether the words in the Act by which I had been appointed would authorize this being done. I requested the consent of the Government to my obtaining the opinion of the Attorney-General on the point; and I submitted the following memorandum, to which the Attorney-General gave the annexed reply: "For the Attorney-General: Being now prepared to make my award on the claim of the Province of Wellington referred to me by the Assembly, a point arises out of the wording of 'The Rangitikei-Manawatu Crown Grants Act, 1873,' as to which I am desirous of having the Attorney-General's advice. Section 5 of that Act says that I am 'appointed to be arbitrator, to consider and decide what compensation, if any, shall be paid to the Province of Wellington on account of lands taken and awarded to the Natives under promises or arrangements made by the Hon. D. McLean.' The Attorney-General is requested to favour me with his opinion—(1) Whether the words of the section in question restrict the arbitrator to the sole question whether the province is or is not entitled to compensation on account of Mr. McLean's reserves; (2) or whether the arbitrator is at liberty under the Act to make a general determination, which should include such a question as that of interest paid on the loan raised for the purchase-money of the block, if he thinks there are equitable grounds for any relief to the province in that respect." "Opinion.—I am of opinion that no other question is submitted to the arbitrator's decision than that of compensation on account of the reserves taken, and that the arbitrator is not at liberty to go into or decide upon any other matter or question.—J. Prendergast. 5th February, 1874."

I am therefore precluded by this technical difficulty from making the award I intended; but as the making of an award to the effect merely that the province was not entitled to compensation would, in my judgment, not do fair justice to the case, I have thought it my duty to refrain from making any award at all, and to confine myself to reporting my opinion to Parliament.

The foundation for the claim to compensation really lay in this: that the provincial authorities deemed the whole Manawatu Block had, under the judgment of the Native Land Court on the 25th September, 1869, and subject only to the Native lands excepted by that Court, become "provincial estate" immediately upon the publication in the Government Gazette of the notification dated 16th October, 1869, that the Native title over the block had been extinguished. But when, in the course of the inquiry before me, it turned out that there had been an understanding between the two Governments that the province was not to claim possession under this notification until the lands excepted by the Court had been laid out upon the ground, and that neither Government was, till that was done, to proceed to any possessory act under the notification; and when it further clearly appeared that the disturbances with the Natives, which ultimately were quieted by Mr. McLean's mission, had arisen in the laying-out of the excepted lands, I at once stopped the case, and declared that it seemed to me the foundation to any claim to "compensation" was cut away.

Before taking evidence in the case, however, I had perceived that the papers laid before Parliament in 1872 gave no connected or even intelligible account of the events which led to Mr. McLean's interposition; and I had made it my care to examine all the correspondence which could throw light on these events. From a vast mass of papers I have extracted whatever seemed in any way important to a fair view of the whole case; and I now append a précis, which, read with the evidence taken before me, will, I think, enable Parliament to see the chain of circumstances which necessitated Mr. McLean's mission, and to judge of the correctness or otherwise of the general conclusions to which I have myself arrived.

It will be observed that there is a conflict between the statements of the two Governments on several important points. It could hardly have been expected to be otherwise when so many complications had taken place, extending over so long a time. The story, however, may really be summed up in a few sentences. The Native Land Court having given a judgment which affirmed the validity of the purchase, but directed certain excepted lands to be laid out upon the ground, the Government were induced, against their better judgment, to publish a notice that the title was extinguished, without waiting for these lands to be surveyed. This notice was, however, in reality, to go for nothing; no possession was to be claimed till the survey should be made. The survey was, from the first, under the control of Mr. Buller, Resident Magistrate and Deputy Land Purchase Commissioner, and the provincial survey staff was under his orders. The survey was no sooner begun than it was stopped by the page 91Natives. Mr. Buller issued summonses against three of the Natives, and, acting in his judicial capacity, arrested the most turbulent of them—an ex-constable, called Miritana. This strong step had only a momentary effect; disturbances were again renewed, and wherever the surveyors attempted to lay out the reserves they were turned off, their trig stations destroyed, and the survey-pegs torn up. The General Government then suspended the general survey. At an early stage of the disturbances they had decided that Mr. McLean should go to the district; and the Provincial Government, not being able to obtain possession of an acre, constantly pressed the Government to hasten his visit. There was never any discussion between the two Governments as to which was to be liable for the results of his mission. No conditions whatever were made as to the extent of any concessions to be made to the Natives by Mr. McLean. Neither the General Government, however, nor Mr. Halcombe (who represented the Provincial Government in the communications that took place) had any doubt that concession of some sort would be made. When the news came of Mr. McLean's reserves, the Provincial Government became alarmed at their extent. But neither they nor the Provincial Council made any remonstrance against the reserves, nor was any claim in respect of them ever advanced by the province till Dr. Featherston came out from England.

It is abundantly clear that if the extent of the reserves had not exceeded 3,000 or 4,000 acres nothing would have been said about them. But, in my opinion, the difference between that amount and the amount actually granted affords no ground for claiming "compensation" as against the colony. It is idle to represent the interests of the two Governments as other than absolutely identical; it is certain that they agreed to act in concert; and no argument tending to fix on either Government separately a special responsibility for Mr. McLean's interposition, or a special liability for its results, can, I think, have any force.

It is impossible for me to agree in the remonstrances of some members of the General Government, amongst themselves, against that Government "mixing itself up in the Manawatu difficulty." The General Government could not possibly escape being mixed up in it. It would have been no use, if the obstruction to the survey had ended in actual conflict and loss of life, for the General Government to say that it was all the fault of the province. Ministers, in fact, took the only step that could have been taken consistently with common sense, when they determined to try for an amicable settlement with the Natives. On the other hand, I find it equally impossible to concur in the arguments by which it is sought to throw the whole liability for Mr. McLean's action on the colony. In Mr. Halcombe's letter of 15th May, 1871, the Provincial Government expressed their belief that "forcible measures were necessary to enable the province to obtain possession of its property," and that "Mr. McLean, as Defence Minister responsible for the peace of the colony, and as Native Minister responsible for the relations between the two races, was ex officio the proper person on whom to place the responsibility of a resort to force." But nothing is clearer than that a resort to force was not in the mind of either Government at the time (1869–70); that, on the contrary, the Deputy-Superintendent and Mr. Fox had agreed there was to be nothing of the sort; and that the Provincial Government themselves believed that any resort to force would bring on a conflict. Moreover, it was always expected that Mr. McLean would make some concessions to the Natives; and the Provincial Secretary was under the impression that, to a reasonable extent, his action would have been indorsed by the province. This impression was originally contained in the draft of the same letter (of 15th May), though it was struck out before the letter was sent in. Why it was struck out it is difficult to see. It was a very important fact in the case; and it certainly should have been communicated to Mr. Fitzherbert, when upon assuming office he called for a statement of what had been done.

But is it fair that under such circumstances the province should be left in the position of having paid a large sum in cash for interest on loan and other expenses connected with the acquisition of the land, before any possession of it was obtained? Suppose that (as Mr. Fox said) quiet possession had not been got for twenty years—suppose it had never been got—can any one say it would be right that the Provincial Treasury should go on paying for nothing? The control of all operations connected with the purchase of Native lands for the Crown always did, and obviously always must, rest with the General Government. It makes not the slightest difference that the Land Purchase Commissioner of the General Government employed to make the Manawatu purchase was also Superintendent of Wellington. It is not my province to express any opinion upon the exceptional manner in which the money for the original payments to the Natives was allowed to be raised, or the equally exceptional proceedings which ended in the judgment of the Native Land Court in 1869; but, when once it clearly appeared that quiet possession of the block was impossible without the special intervention of the Native Minister, it seems to me that the proper course would have been to reconsider the whole matter, and to place the province in the same position, pecuniarily, as it would have been if the General Government had conducted all the proceedings throughout. That some idea of this kind had been in the mind of the General Government is clear from the concession contained in Mr. Gisborne's letter to Mr. Fitzherbert of 4th April, 1872, Where he proposes "to eliminate from the accounts of moneys then charged against the province all cash expenses incurred by the Government since the date (16th October, 1869) of the notice of the extinction of Native title in the block, in the settlement of disputes arising out of that purchase; and to charge these expenses to the loans for the purchase of lands in the North Island under the Public Works and Immigration Act, the interest and sinking fund of the cost to be chargeable, as in the case of other land purchases in the Province of Wellington, to that province." What I fail to see is the principle on which this should only be done as from the date of the notice. It appears to me that what was right to be done in respect of what happened after that date was equally right to be done in respect of what happened before. If the argument, that the notice of the extinction of Native title constituted the territory as "provincial estate," falls to the ground by the admission that no possession was to be claimed under it till the Native reserves were laid out, it is clear that the responsibility of laying out the reserves lay with the General Government and not with the province; and exactly the same reasons which existed for relieving the province from any part of the cash payments before possession was given must, in my opinion, exist for relieving it from the whole. And if that admission cuts the ground away from the claim to "compensation" for the land taken by page 92Mr. McLean for his reserves, it also shows that the province ought to have been, and therefore ought now to be, relieved from providing, in the first instance, the cost of acquiring a clear title, and settling the Native disputes.

Of course I do not mean that this cost should be carried to final charge as an expenditure by the colony. On the contrary, I see no ground for not making it in the usual way a charge against the province. It should be defrayed out of loan, and the province should pay interest and sinking fund as proposed by Mr. Gisborne. The only fair way, I think, of dealing with such a case is the one laid down in section 38 of "The Public Works and Immigration Act, 1870," which enacted that a separate account should be kept by the Colonial Treasurer, against each province of the North Island, of all moneys expended in the purchase of Native lands within the province, and that each province should be charged with the cost incurred in the purchase of such lands (with interest) so long as the province should in respect of such lands continue to be indebted to the colony for the advance. I find that the amount of "cash eliminated from the account," as that account stood at the time of Mr. Gisborne's letter, was this: for survey expenses, £389 10s. 5d.; for advances to Dr. Featherston, £2,662 8s. 2d.: total, £3,051 18s. 7d. Since that time, however, the first sum has been increased by further disbursements to £1,281 9s. 9d., and this sum, together with a sum of £1,200 advanced to Alexander McDonald on mortgage for five years, was charged in 1873 to the Immigration and Public Works Loan. The second item, on the other hand, has been diminished to £1,962 8s. 2d.; and this item has not yet been transferred to the loan, because the Treasury was led to believe the amount would probably be repaid, as to the extent of £700 it appears to have been. But no interest has yet been charged to the province in respect of the sum transferred to the loan, nor indeed has any account under section 38 been made up with any province in respect of moneys expended for purchase of Native lands. So that as regards the Province of Wellington the account is, in fact, open. I think it should be closed. Only, instead of stopping at the date proposed by Mr. Gisborne, the account should go back to the beginning, and be brought down to the time of getting possession for the province by the making of Mr. McLean's reserves.

It only remains for me to say what sums paid by the province should, in my opinion, be repaid to the Provincial Treasury and charged upon the loan. In the first place, I take the interest on the loan which was raised to pay the Natives under "The Wellington Loan Act, 1866;" secondly, the cost of raising that loan; thirdly, any supplementary purchase-money paid to the Natives after the loan was paid away; fourthly, the salaries and allowances of the Land Purchase Commissioners; and lastly, the expenses of the judgments in the Native Land Court, including counsel's fees in defending the title of the Crown. I am not able to see, in any one of these items, any distinction in principle which should separate it from the items paid by the General Government after the 15th October, 1869. They were all payments for like purposes, and all were of necessity preliminary to giving the province quiet possession.

Had I been able to make a definite award for the repayment to the province of these sums under the term "compensation," or had the General Government been willing that I should go into the question of an equitable adjustment as between the two Governments, I should, of course, have taken an accurate account of the moneys coming under the heads I have mentioned. As it is, I have only been able to estimate them from information supplied by the Provincial Government. According to this information, the amount would probably be as follows: Interest paid by Provincial Treasury, £10,565; cost of raising loan of 1866, £889; supplementary purchase-money, £345; Land Purchase Commissioners, £2,500; costs in Native Land Court, £966: total, £15,265. But of course, if Parliament should be pleased to concur in the views expressed in this report, an accurate account would now have to be taken, and the final sum be added to the amount already in suspense under Mr. Gisborne's elimination.