Mr. Judge Maning to the Chief Judge, Native Land Court.
Sir,—Hokianga, 6th February, 1866.
I have the honour to acknowledge the receipt of a set of papers relating to a land dispute at Ohaeawae, and other matters referred to me to be dealt with, and accompanied by your request that I will say what should be done in the affair.page 21
This dispute is one of several years standing and is not the worst of several now pending in this district, any of which may not improbably bring much difficulty if not bloodshed, amongst the parties concerned.
That the Natives bring these obstinately-contested disputes which they cannot settle themselves, and which they themselves vehemently declare can only be settled by "death," before the notice both of the Executive Government and the Judges of the Native Land Court, is owing to—First. That hitherto Civil Commissioners, Police or Resident Magistrates, and Judges of Land Courts indifferently have interfered in these quarrels, having avowedly for their object the conservation of the peace and making the inquest as to the ownership of the land merely as a means to that end. Second. Both parties to the quarrel, seeing the anxiety manifested to preserve peace by the Government, think now that by threats of entering into an intertribal war, or by actually doing so, they can force a decision from the Land Court, which would be hailed by the party in whose favour it might be as an accession of prestige or moral inflence in their favour, and which they would be ready to support by arms, but which often in these old and embittered disputes, into which so much personal animosity has been imported, would be equally resisted by the party against whom the decision is made.
The Natives, as I have said, do not in many cases bring these worst cases of disputed claims before a Court in any hope or expectation of a just or equitable decision, as they are aware that they can involve the case in utter obscurity by a mass of absolutely conflicting evidence; but each party hopes to obtain a favourable decision by indirect influences brought to bear on the Court or on the Judge, such as holding out a prospect of great bloodshed being likely to ensue if a decision is not come to, or, what they trust even more to, a threat to complain of the Judge to the Governor. The truth is that, from what the Natives have hitherto seen of the County or District Courts, they have acquired no better idea of the position of a Judge of a Land Court (the abstract idea of the Court and its authority is not by them at all understood as distinct from the individual holding office for the time as Judge, his personal character and interests) than that he is a subordinate executive officer, whose decisions are or may be influenced by every petty consideration of temporary expediency, or reversed by the superior officers of the Executive Government on the same grounds.
I have thought it right to make the above remarks previously to answering your request that I should say what should be done in this dispute to which the papers I have received refer, as they will show that the very great obstacles, which these Native land disputes throw at present in some cases in the way of the action of the Land Courts, are merely the effect of ignorance, or chiefly so, on the part of the Natives (I speak of this district), but which are likely to disappear gradually as the Natives are convinced by practical demonstration that the Native Land Court is an independent and impartial and strictly judicial tribunal, having power to give final decisions, or to refuse to give any decision where sufficient data or evidence is in the opinion of the Court wanting on which to found a decision. Before, however, the Native is educated to this point on the subject by observation of practical facts, illustrative of the true position, functions, and authority of the Courts, we may expect trouble from them in their endeavours to warp the action of the Court to what, in their own opinion, it ought to be— viz., a personal interference of an executive officer or officers, over whom each party hopes to prevail by interminable koreros, alarming threats of bloodshed amongst themselves, and hints of accusations to be made to head-quarters against the officer himself.
I shall now answer your question as to what should be done in this particular case and all similar ones; what in fact I consider it my duty to do as a Judge of the Native Land Court, supposing always that I read "The Native Lands Act, 1865," aright, and interprct its meaning correctly.
My procedure in this case would be exactly the same as in any other, that is, strictly according to law, and without any regard whatever to any extraneous circumstances or expediencies or conesquences, except in so far as the discretionary powers vested in the Court might be applicable to such considerations. To refuse to hear any claim, supposing it in the discretion of the Court to so refuse— which I doubt—merely because it is by common report an obstinately contested one, would be to virtually come to an extrajudicial conclusion on the matter not warranted, as I think, by law or supported by evidence. (I should be glad of a legal opinion on clause 22. Does it give discretionary power to the Court to refuse a hearing?) Should, therefore, this disputed case, to which the documents received by me refer, be brought before the Court in the regular form prescribed by "The Native Lands Act, 1865," I should have no hesitation in entertaining and hearing it, and coming to a decision on the merits as established by evidence, without, as I have said before, any regard to any considerations of mere temporary expediency, or whether a breach of the peace might or might not arise from the disappointment of turbulent Natives against whom the decision might have gone, except in so far as the discretionary powers possessed by the Court might be brought to bear on those circumstances.
It is most probable, however, that in most of these pertinaciously-disputed cases no decision could be come to by the Court for the following reasons: (1.) In most cases the land would not be surveyed, as the contending parties would prevent each other making a survey, and a survey under the circumstances could not be dispensed with by the Court. (2.) From conflicting evidence; for in these obstinately-disputed claims the claimants unscrupulously contradict each other on oath, as do all the witnesses, they being mere partisans on either side, whose only object is to gain the case without much consideration of truth or justice, and to gain so much land at the expense of the other party, to sell as quickly as possible, for money to be divided amongst themselves. (3.) From question able right of both parties to the land in dispute. The Native Land Court does not decide on the ownership of Native lands by any rule of English law, but according to Maori proprietary customs, usages, and acknowledged rights; and as one of the primary Maori rights to land universally acknowledged as such is force, or the successful retention of the land against all other claimants, when the counter claimant is strong enough to jeopardize the possession of the other party a doubt may be entertained (under Maori usage) of the right itself; and this doubt evidently would apply to the right of either or both parties, and would probably lead to an adjournment and a recommendation to the parties to settle the matter amongst themselves, or a refusal by the Court to come to any formal or judicial decision on the case.page 22
I have every hope that after a time, when the Natives have found by experience that their ferocious-disputes only retard instead of accelerating the issue of Crown grants for their land, they will give them up, and come into Court only after having agreed amongst themselves as to what their rights really are. But in the meantime we may expect some cases to occur likely to entail disaster on themselves, though as a whole I confidently believe that the operation of the Native Lands Act will prove eventually successful, and an inestimable benefit both to the Maori and European inhabitants of the country. I therefore conclude that the case in question, and which has been referred to me, ought to be entertained and heard as an ordinary case; and that in fact every application ought to be heard without considering whether it be disputed or not—a thing which can only be known, as I conceive, officially, after the case has come into Court.
I have, &c.,