(Enclosure 4 in No. 2.)
Mr. Theophilus Heale to the Chief Judge, Native Land Court.

The first and fifth heads on which I am desired in your letter of the 17th ultimo to report, justify me in going beyond my own proper province of survey. I am induced, therefore, to make a very succinct sketch of the whole question of Native land titles, and the means that have been adopted to convert them into legal freeholds, before considering the, improvements which appear to me to he required in the existing mode of dealing with them, both in its general conduct and especially in that branch of the system in which I am more particularly concerned. Omitting altogether, for the sake of brevity, the historical facts which sustain these, views, I take for granted—(1.) That the Native title to land is communal,—all the free families of the tribe which acquired land being its proprietors, the chiefs ^* having no greater rights in it than the other members of the tribe, except in so far as, at the present time, they generally represent a greater number of families. (2.) That this title was founded entirely on ancient and uninterrupted occupation, or on conquest, followed by such acts as, in Native eyes, implied continued occupation, or at least dominion. (3.) That this title vested in the community, and maintained only by its physical force, was such as could not possibly be recognized or administered by Courts bound in matters of real estate by the rules of, the English common law. (4.) That these rights were in the largest and most general terms confirmed and guaranteed by the Treaty of Waitahgi, and that some machinery became absolutely necessary for ascertaining the individuals in whom the right to the land lay, according to Native views, and for converting those vague and unavailable rights into such titles, vested in individuals, as would enable transfers to be made to which the rules of English jurisprudence would apply.

The first and most obvious method was to buy up, on behalf of the public, these rights of the Natives, whatever they might be (and for this no close investigation or nice discrimination as to ownership was required, the only care necessary being that all claims, good or bad, should be extinguished by purchase); and then, having acquired to the Crown the absolute freehold, to reissue it under the sanction of Crown grants. I need not go into the history of this system, its progress, and its failure, further than to observe that it involved these fatal objections: First. That the buyer was the final and only judge of the rights of the seller, and therefore laboured under the suspicion of being disposed to view with favour the claims of those who were most willing to sell. Secondly, That, in practice, the only mode the buyer had of ascertaining the nature of the title and of learning the complex and disputable facts and traditions on which it rested, was by separate interviews with the different claiming tribes, who had a constant tendency to exaggerate their claims in order to counteract the exaggerations which they knew the other parties would use; and so, there being no means of confronting adverse claimants, all the old disputes and tribal feuds were renewed and exasperated. And, thirdly. That, since the land-buyer and the Government were, in Native eyes, identified, any violence or threats by which a tribe sought to maintain its claims to land appeared to be outrages against the Government. An indisposition to sell land became disaffection; and the land leagues, which were naturally formed as some protection against the alarms and suspicions of the Natives lest negotiations should be made with other parties for lands they claimed, were undistinguishable from hostile associations against the Government and the colony. That, after twenty-five years of this system, incurable suspicions filled the minds of the Natives; that the colony suffered miserably from want of lands, while purchases became increasingly difficult; and that the peace of the country was fatally disturbed —are matters of history, on which I need not touch. The remedy applied by the Legislature was based on two leading principles—(1) That the Government should no longer present itself to the Natives as a bargainer for their land; and (2) that all questions as to the ownership of Native land, and investigation of the facts on which it reposes, should be referred to a Court composed of Judges appointed for life, therefore independent of the Executive, and free from all suspicion of interest in the result; holding its sittings only in public, after due notification, and with the parties confronted before it. The soundness of these principles is so unquestionable, and the success that has followed their adoption is so manifest, that I apprehend they can never again be called into serious controversy; and the question now to be considered is, to detect and suggest a remedy for any defects which may have shown themselves in the working of the system based upon them, rather than to discuss the principles themselves.

Before passing to these supposed defects in the working of the Native Land Court system, I may notice—but only to pass over, as belonging rather to the domain of general politics—that extensive evils have arisen from its immense success, and its consequent over-rapid operation. Up to the year 1865, as far as can readily be gathered from published returns, the whole amount of land alienated by the Natives in the Province of Auckland only amounted to about 2,000,000 acres, of which a great portion has never passed into the hands of individuals; while, since that-time, 2,000,000 acres have passed through the Land Court, of which the far greater part has been alienated by sale or lease, or has been thrown on page 57the market for that purpose; and this large consumption took place although, during the same period, about 2,000,000 acres more have been confiscated, of which also the better portion has been distributed among the colonists. It is impossible that so enormous a change in the ratio of supply and demand can have taken place without many inconveniences arising, the most obvious of which is the great depreciation in price; lands equal in quality to what in 1860 were readily sold at £1 per acre, and which could only be obtained in small areas, are now hawked about in large blocks for sale at 2s. per acre, and even less. From this it is that much of the dissatisfaction with the working of the system arises. The Natives for the most part can only look at results, and their discontent is natural; the costs, too, which would have been an insignificant proportion to the value at 20s. or even 10s. per acre, look enormous when the laud is sold at 1s. Even the colonists who were most friendly to the operation of the Act, having now for the most part bought land to the extent of their means or desires, are concerned to see the price still falling as fresh lands are passed through the Court. This evil is great, and it may well engage the attention of politicians, but it is the triumph, of the Native Land Court system.

The Native Lands Act did not bestow the lands of New Zealand upon the Natives: that had been already done, as fully as words could do it, by the Treaty of Waitangi. The object of those Acts was to make those absolute and complete but vague and indefinite rights available for transactions with the colonists; and if too much land has so been made available, and an overstocked market has resulted, that can never be made a reproach to the Native Land Courts or their system. I return, therefore, to the consideration of what I conceive to be the defects in, or the impediments to, its action. These, I believe, may all be resolved under the following heads, namely: (1.) The want of settled rules as to Native title and evidence; that is, some outlines, at least, of a code of received Native custom and usage and a settled and simple law for the guidance of the Court. (2.) The practice of vesting legal and convertible estate absolutely in a few individual Natives, who are, in fact, only representatives of a number of families. (3.) The great expense and imperfection of the means of ascertaining and fixing the limits of the parcels of lands from the want of a sufficiently comprehensive and accurate system of survey. And (4.) The great and increasing expenses involved in the hearing of contested claims, especially in the larger towns.

The first defect noticed is one which was inevitable in the commencement of the system. In the twenty-five years which elapsed between the foundation of the colony to the full establishment of the Native Land Court no progress had been made in ascertaining what constituted Native title to land —whether conquest absolutely extinguished the rights of the conquered; what right remained to conquered or submitting tribes suffered to remain on land in some subject capacity (rahi); rules of inheritance, &c.

Thus the Native Land Court had unavoidably to seek out, from the evidence before it, from its Native Assessors, and ultimately from its own experience, what the Native custom and usage was, as well as the facts to which it was to be applied. This happened to be a function to which the Court was peculiarly fitted, and it has unquestionably been very well performed; but I cannot but think that the time has now come when the experience acquired is sufficient to enable a tolerably complete system of rules to be laid down, and that their publication would save the Court and the litigants a great deal of time and labour, and would make the Court's judgments more clear and intelligible to the public, and so increase the confidence with which it is regarded.

As regards the application of English law to the issue coming before the Native Land Court, I cannot but think that the leaving decisions in any disputable point of law to the Court was an unfortunate mistake. Originated to deal with "Native customs and usages "—intended to sit in Native districts to decide on claims to land on the spot, and constituted partly of Natives—questions of technical law were peculiarly foreign to its nature and to the purposes of its institution. It appears to me that the carrying-out of its own proper objects requires that the Court should be as much as possible identified with the Natives, who should be able to follow the pleadings before it, and to understand all its proceedings; and that the introduction into it of solicitors and barristers, generally wholly unacquainted with the language or customs of the Natives—arguing technical points utterly unintelligible to the suitors, and even to the Assessor on the Bench—was a fatal departure from its principles, which has brought to it opposition from many of the colonists, has in some degree, estranged it from the Natives, and has introduced into its operation a delay and an amount of expense which is often utterly destructive to the interests it was constituted to protect. It appears to me that in any legislative revision of the Native Lands Acts a provision ought to be made enabling the Court, in case of any question arising on a point of English law, to make up a case to be decided in some cheap and expeditious way by the Judges of the Supreme Court; and that in the Native Land Court Natives alone ought to be heard, with the aid only of interpreters, whose functions should be strictly defined by the Court, and that the proceedings ought to be carried on originally in the Maori language, and be interpreted to the Court for record.

The evils which have arisen in practice under the third head have, been of so crying a character that several attempts have already been made to mitigate them. I doubt if any will be effectual which do not go to the root of the matter; and that I conceive to be, to leave the land, as long as it continues to be held by the original Native owners, to be held by all interested in it in common (in the non-legal sense of the word), capable of being dealt with only in the way which alone Natives can clearly understand, by common consent, and only to invest it with the attributes of English real estate when, by the general consent of the owners, to be proved, like any other Native fact, by appearance before the Court, it is transferred to an individual capable of understanding and being bound by the rights and obligations effecting real estate. The chief difficulty in carrying this out would be the necessity of making the Native Land Court always available in the chief centres of Native districts, since a recurrence to it would be necessary whenever the certified owners wished to make a first transfer to the land awarded to them; but other reasons exist in favour of establishing the Courts permanently in the chief centres of Native districts, instead of sitting in them casually: as now. As it is, the Natives generally have shown themselves incapable of appreciating the duties and responsibilities which they well know attached to the nominal estate in the lands of their relatives, which became page 58vested in them by their names being put into the Crown grants; scandalous frauds have been committed, by which valuable estates have been sold for a mere trifle, no part of which has reached the real owner; and those very parties who have thus abused the trust reposed in them have turned round against the law and the Court which gave them the power to do it.

I now come to the question which more properly belongs to me, the defects and shortcomings of the system of survey. The Native Land Court system was not only in its nature tentative and obliged to work experimentally, and therefore subject to many risks of failure in detail, but it also inherited many of the evils which arose from the faulty system which preceded it; these operated especially against a good system of survey. In the time when every Native stood in terror lest his hereditary enemies or his own kindred should privately sell the land he claimed, the act of survey was particularly dreaded as evidence of such operations. The surveyor was watched for, to be hunted off the land whenever seen. Thus any system of general survey was impossible, and the practice became universal of making wholly detached surveys by cutting lines round the periphery of a piece of land, and traversing it with the chain by compass bearings, a system open to every kind of objection; it is enormously expensive; it defines the estate on the ground most imperfectly; it does not admit of any adequate check being applied to its correctness; and, above all, it does not enable the survey, when made, to be laid down on a record map. Moreover, the jealousy of the Natives of a surveyor, and particularly of a Government surveyor, was so great that, in 1865, it was not practicable to limit the performance even of such surveys as described to persons employed by the Government; but in order to avoid responsibility, and to disarm opposition, the Native claimants were left to employ their own surveyors, the only check upon their trustworthiness being that these were required to be licensed by the Government. Even this slight check was to a great extent nugatory, since, when the survey was a matter of bargain, it was found impossible to refuse to allow the Natives to employ the person who would undertake to perform their work cheaply, unless some strong objection to him existed: thus, in practice, licenses have rarely been refused to persons who could produce respectable vouchers as to character and competency. As a rule, the Native landowners have not the means of paying the surveyor for his services, not even for his out-of-pocket expenses; they are therefore commonly obliged to accept the services of some one who will do the work on the security of the land. With such uncertain prospect of payment, the surveyor bargains for a far larger price than would satisfy him if he were paid in cash. In addition, he has often, if not generally, to pay a heavy percentage to the Native agent who procures him the work, and often still heavier discounts to some one who will advance money on the security of his claims. The result of this system, as might have been expected has not been satisfactory as regards the quality of the survey; it is often ruinous to the surveyor and is very disastrous to the Native landowner. Its effect upon the Natives has latterly been exaggerated to a point which is becoming a reproach and a disgrace to the community, through the evasions by which some of the surveyors have succeeded in withdrawing their claims for survey costs from the cognizance of the tribunal which the Legislature specially appointed for their investigation, and practically from any check whatever.

Clause 69 of the Native Lands Act provides, "That in any case whatever in which a dispute shall arise between a surveyor and his Native employers, either as to the amount of remuneration, or as to the quality of the work done, or on any question whatever arising out of such employment, the Court may inquire into the case and take evidence thereupon, and give such a decision in the premises as it shall deem fit, which decision shall be final and binding on both parties;" and the Rule No. 58 of the Native Land Court, made in pursuance of that Act, provides that "Whenever a surveyor or his Native employer shall bring before the Court any question under section sixty-nine of the Act, the party intending to apply to the Court shall give to the other party at least seven days' notice of his intention so to apply, except in cases where both parties are present." Were these provisions carried out, some just ratio, at all events, between the quantity and quality of the work, and the price demanded for it, could be maintained; but a practice has arisen of inducing Natives, when desiring to have their land surveyed, to sign agreements, promissory-notes, or other legal instruments, on which proceedings in the Supreme Court can subsequently be taken; and by these means, in some cases, Native chiefs have been arrested for survey costs such as certainly would not have been allowed after investigation before the Native Land Court. In others, lands have been sold under execution at insignificant fractions of their value, the surveyor himself being sometimes the purchaser.

Those who know the fatal facility with which Natives, when eager to gain an immediate object, can be induced to sign documents which they imperfectly understand, and of which the effect is comparatively remote, will see that there is no limit to the extortion which becomes possible when the judicial issue is taken, not upon the equity of the original bargain or the way in which it has been carried out, but simply on the legal effect of an instrument which a Native has been induced to sign. Such a condition of things ought not to be suffered to continue; the original cause for its allowance has to a great extent passed away. The objections of Natives to have their land surveyed have diminished with the cessation of the cause which led to them (except, of course, to the King's territory), and there appears to be no sufficient reason why the Government should not now resume this portion of its abdicated functions. One of the first necessities of any civilized Government is accurate maps of its territory. When the Legislature undertook to give valid titles for Native lands it became bound to take due precaution to secure them against the risk of future litigation; there is only one way in which the duties can be properly carried out—that is, by the rapid extension and connection of the various triangulations which now cover about one-fifth of the accessible portions of the North Island; and by refusing to receive any surveys unless made in subordination to those triangulations and by officers directly responsible to the Government—that is, by the Government taking into its own hands the execution of all surveys of Native lands. I am satisfied that the work so executed, though infinitely superior in quality, would not cost one-half of the average prices now paid, nominally by the Natives, but generally by the purchasers of Native lands; and, while making a great immediate saving to the public, it would not ultimately involve any loss to the Government, since each land claim, as it passed, would be charged with its quota of the expense, which would ultimately be recovered in the same way as the other dues now are.

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To carry this out I would, propose, not that the work should in all cases be performed by, salaried officers, but that in suitable districts one or more district surveyors should be appointed,. who when called upon should survey any lands, required to be passed through the Court and receive therefor regular contract rates. Should, however, such a plan be seriously entertained, it would be necessary to prepare a very complete set of rules, which it would be premature to enter upon now. It may be necessary, however, to consider what would be the general effect of such a system. I think there can be no doubt that the cost of surveys now largely operates to deter Natives from passing their, lands through the Court, and there is reason to believe that if this were removed a great increase would take place in the business of the Court, especially of large blocks not likely early to find purchasers; and the consequence would be that the Government would become the mortgagees of very large areas of land, and, unless special action were taken to prevent it, the land market would become still more burdened with unsaleable estates. Whether this is desirable or not it is not for me to say; whether it might with propriety become part of a system by which, without any bargaining, the Government might systematically purchase large blocks at a certain fixed scale of rates, is a question of politics with which I have no vocation to meddle; but I ought to state my conviction that the result of relieving the Native landowners from the task of paying for their surveys would soon be greatly to extend the operation of the Native Land Court, and at no distant date to put an end to Maori tenure, with its interminable disputes and excitement.