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

No. 10. — Memorandum by the Hon. C. W. Richmond on the Territorial Rights of Chiefs

No. 10.
Memorandum by the Hon. C. W. Richmond on the Territorial Rights of Chiefs.

Auckland, 3rd December, 1860.
1.His Excellency's reply to Mr. Fortescue's despatch of 27th August, 1860, deals so thoroughly with the question of the territorial rights of the Native chiefs that little is left to be said on the subject.
2.The main question proposed by Mr. Fortescue is, whether or not there exists, in the chief or tribe, "a right, distinct from one of property, to assent to or forbid the sale of any land belonging to members of the tribe, in cases where all the owners are willing to sell."
3.The answer to this question must be sought for in the history of land purchases since the settlement of the country by Europeans, and not in fanciful deductions from what is known or conjectured about the original state of the New Zealand tribes.
4.The settlement of the country, and the establishment of British sovereignty, of necessity effected a great change in the status of tribes and individuals of the Native race. The New Zealand tribes, in their original state, were so many separate nations. The assumption of the sovereignty of the Islands, under the provisions of the Treaty of Waitangi, extinguished these separate nationalities, together with the rights flowing out of them. At the same time the treaty saved all proprietary, as distinguished from national, rights, and (subject to Her Majesty's right of pre-emption) confirmed to the Native landowners the power of alienation which they had already begun to exercise.
5.It is very doubtful whether, previously to the arrival of Europeans, the aborigines had any notion at all of the absolute alienation of territory. Certainly they did not regard land as a marketable commodity; and whatever alienations may have taken place amongst themselves were of a totally different character from such as followed upon the settlement of the country.
6.The alleged right of restraining alienation cannot be deduced from the practices of a time when the tribes were little nations constantly engaged in mutual hostilities, and when such a thing as a sale of land, in our sense, had not been heard of; and it would be foolish to seek precedents for the regulation of dealings with Europeans in the usages of a period when there were no Europeans in the country. The right of alienation was a novelty unprovided for in the whole tribal economy, and the conditions of the exercise of the right were, of course, novel also. The subject, therefore, can receive no real illustration from the investigation of the Native ideas and customs prior to the advent of Europeans, but the inquiry to be made is simply this: whether or not the alleged right of control has been recognized or asserted since the settlement of New Zealand. If not, no such right can be supposed to exist.
7.The land purchases made of the Natives of New Zealand are divisible into two great classes: First, those made of leading chiefs, representing whole tribes (iwi); secondly, those made of sub-tribes (hapus), or of families or other comparatively small groups of individuals.
8.The former class of purchases comprises those cases in which a large unoccupied territory has been disposed of by the conquerors, as in the instance of the sale of the Middle Island by the Ngatitoa chiefs, and of Taranaki by Te Wherowhero and his brother.
9.In most, perhaps in all, of the cases belonging to the second class the land sold has been territory actually divided amongst, and appropriated by, the different hapus or families of the tribe. By far the greater number of purchases belong to this class. All the purchases made to the north of Auckland, whether by Government or individual Europeans, belong to it; so do the purchases made of the Ngatikahungunu in the Hawke's Bay District and the Wairarapa Valley, of hapus of the Waikato page 28Trib in the neighbourhood of Whaingaroa, or Raglan, and, of the Ngatiawa at Port Nicholson and in Taranaki.
10.Neither class of purchases affords any precedent of the exercise or assertion of the supposed right. In sales of vacant territory the principal chiefs have themselves been the vendors. In sales of occupied territory an absolute and unquestioned right of alienation has always gone along with the right of occupancy, which is generally exclusive in certain hapus or families, and not common to the whole tribe.
11.It thus appears that the unrestricted right of alienation has in practice accompanied the right of property, whether subsisting in the tribe or in any smaller Native community, and that no seignorial or tribal right of controlling sales by the Native owners has ever been exercised, or in anywise asserted, since the commencement of land purchases in New Zealand. His Excellency's Responsible Ministers are therefore of opinion that the main question proposed by the Secretary of State should be answered in the negative.
12.Whilst arriving at this conclusion respecting a matter of fact, Ministers desire to guard against being supposed to maintain the opinion that such practical influence as the principal chiefs may hereafter attempt to exercise in the matter of land sales ought to be disregarded. The distinction between right and power is still faintly drawn by the Natives themselves; and—dealing with them as in some sort a foreign Power—it will be generally prudent to respect any authority and influence established amongst them de facto, without too nice an inquiry whether that authority and influence exist strictly de jure. The political power of the chiefs is still great, and the jealousy of European progress on the increase, so that it is probable that in many cases the influence of the chiefs may be employed to check the exercise by Native landowners of those independent rights of alienation which they have hitherto enjoyed. Such a use of the political authority of the chiefs certainly ought not to be encouraged; at the same time it would often be imprudent to press the completion of a purchase in the face of the opposition of any important chief nearly connected with the Natives offering to cede territory.

Wiremu Kingi's Claim to Waitara.

  • 13. As regards the remaining question whether the particular claim of William King to interfere with the sales in the New Plymouth District was such as it would, on any ground, have been right or politic to admit, the Governor's despatch has exhausted whatever still remained to be said. His Excellency's Ministers feel that it cannot be necessary for them to do more than to state; summarily, their own views. They think that any such recognition would have been unjust to the Native proprietors, and, seeing that W. Kingi's pretensions and intrigue have for years convulsed the district, to the European settlers also; that it would have been an abandonment of the principles laid down and acted upon by successive Governments for the settlement of the Ngatiawa claims at Taranaki, and a violation of the express promise made to the assembled Natives at New Plymouth by the present Governor in March, 1859; that, far from putting an end to it, it would have aggravated the feud which has already occasioned so much bloodshed amongst the Natives, and has so frequently disturbed and imperilled the settlement of New Plymouth; that it would have rendered the intervention of the British Government to establish peace in the district more difficult, but would by no means have obviated the ultimate necessity for such intervention: in fine, that it would have been, under the peculiar circumstances of the case, the dereliction of a plain duty, and an act of weakness unattended by any advantage beyond the postponement of a difficulty which must have soon recurred in some aggravated form.

C. W. Richmond.