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

III. Sir William Martin, late Chief Justice of New Zealand.—1846

III. Sir William Martin, late Chief Justice of New Zealand.—1846.

So far as yet appears the whole surface of these Islands, or as much of it as is of any value to man, has been appropriated by the Natives, and (with the exception of the part which they have sold) is held by them as property. Nowhere was any piece of land discovered or heard of [by the Commissioners] which was not owned by some person or set of persons. … There might be several conflicting claimants of the same land; but, however the Natives might be divided amongst themselves as to the validity of any one of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants. In this Northern Island, at least, it may now be regarded as absolutely certain that (with the exception of lands already purchased from the Natives) there is not an acre of land available for purposes of colonization but has an owner amongst the Natives according to their own customs…..

For the most part the boundaries of property are well defined. In the immediate neighbourhood of such pas as are at present inhabited, land is often minutely subdivided; each separate piece belonging to some one person, who cultivates either alone or jointly with some member of his family. The same is the case in the neighbourhood of old pas, even though they may have been abandoned for many years. The titles of the former cultivations are remembered and maintained by their descendants.

Where the acts of appropriation, in some past generation, were of a less public nature, or took place a long time ago, the titles of the present claimants are of course much more difficult of proof. Out of cases of this kind the greater part of the existing disputes have arisen. Each of the claimants endeavours to prove some act of ownership exercised without opposition by one of his ancestors. Acts commonly alleged are—cultivating, building a house or catching rats on the land, setting an eel-weir, cutting down a totara tree in the forest for a canoe, &c. These claims, in the ordinary course of things, become sufficiently complicated, but are rendered much more so by the introduction of another set of claims which arise out of rights of conquest, enforced in very different degrees in different cases. Boundaries between different pieces of property have been often indicated by the Natives incidentally, without any question put or any previous reference to the subject, in spots now remote from any habitation of man: for example, on the edge of the forest between the Whauganui River and Tongariro; on the highest peak of the Aroha; at a stream in the heart of the wood between Tauranga and Rotorua. But between territories of different tribes there are often found tracts of land which are called kainga tautohe or (literally) debatable lands.

The lands of a tribe do not form one unbroken district, over which all members of the tribe may wander; on the contrary, they are divided into a number of districts appertaining to the several sub-tribes. Each sub-tribe consists of the descendants of a common ancestor (whose name it generally bears), who was in former times the conqueror or in any other way the recognized owner of the district. These smaller districts are in many cases numerous, and for the most part are sufficiently well defined. Within each of them the families or members of the sub-tribe are free to range, both to take the natural products of the soil and to cultivate for themselves such portion of it as they may choose. There is no paramount or controlling power either in the tribe or in the sub-tribe, to restrain or to direct the exercise of this right of appropriation; each family or freeman may use and appropriate without leave of any. It is indeed a rude form of property, a natural stage in the progress towards the more complete appropriation of the earth's surface in the way familiar to ourselves. But still, every right which exists, whether in one person or in more, is truly a right of property, and there does not, in this state of things, exist anything which can be correctly likened to a right of sovereignty as understood among us.

Mr. Spain says, in describing the Port Nicholson District: "There are seven divisions or families of a tribe, each claiming separate lands of their own, and certain rights and privileges, which are sometimes wholly denied, and at others only partially admitted by the rest." Again, speaking of the same district: "In a place so thickly populated as I have before described this to be, the boundaries of the parts of the district belonging to each tribe or family are generally pretty well ascertained and admitted between them. As a proof of this I may mention that in the case of Native reserves great difficulty has been found in getting Natives belonging to one family to go on a reserve made within the boundary of the land belonging to another family, although it has been fully explained to them that the reserves are made for the benefit of the Natives generally, and not for any particular tribe or family. They cannot understand this; and in several instances that have fallen under my notice they page 19have positively refused to cultivate a Native reserve so situated, although at the time in actual want of a spot to grow their potatoes upon.". … The New Zealanders have been in the constant habit of resisting even to blood any encroachment upon their territorial rights. They are not less disposed to resist now. For their determination on this point there are two reasons: (1.) That these rights (whatever names our lawyers may give them) are of great value to the Native, as has been shown. They, like other men, are naturally disposed to retain, by force if necessary, that which they know to be a benefit to themselves. (2.) That every tribe sees, in any successful encroachment upon its territory, a peril to its own independence and even to its existence as a distinct tribe. An extreme jealousy on this point appears to be the natural result of their condition, and may with truth be described as the "passion" of this people. This has been a main cause of desolating wars. There is a common proverb, "He wahine, he oneone, i ngaro ai te tangata" [women and land are the destroyers of man]. The pride of each tribe centres in its power to maintain its own possessions against aggression. This spirit in the Native people is closely akin to one which, if we were speaking of ourselves, we should describe as patriotism….. In New Zealand the claims to land are numerous; the claimants often live far apart from each other; and the people are especially slow and deliberative in settling the terms of a bargain. To make a good bargain there are needed length of time, publicity, and knowledge of the Native language. When these requisites are found, purchases of land in New Zealand may be and in a large number of cases have been, made as safely at least as in England.— [Pamphlet of 1846.].