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Notes on Sir William Martin's Pamphlet Entitled the Taranaki Question

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Page 1.

"Native Tenure of Land."

It is necessary to say at the outset that there are no fixed rules of Native Tenure applicable alike to all the Tribes of New Zealand. [See note p. 5.]

In his Despatch to the Secretary of State dated the 4th December 1860, after giving numerous instances of conflicting opinions among high authorities on the subject, the Governor said: "No one of my predecessors has ventured to lay down any precise theory on the subject of Native Tenure, nor could I pretend to do so: on the contrary, I have endeavoured to follow in the path traced out by them, and have studied to preserve as much consistency and uniformity of action as circumstances would permit, in all dealings with Native proprietors. …………It must be remembered that the ancient customs of the Natives with respect to land had been materially affected by engrafting upon them the new practice of alienation since the first irregular settlement of the country. We found that the Natives had no fixed rules applicable to all the tribes and to every locality, and we adopted as our guide in each district the customs which in that district were in force among the people themselves, where the right of alienation had followed the old right of property, whether in the tribe or the family."—[See notes p. 2, 5.]

It may be as well to give some instances of the conflict of opinion on many material points of Native Tenure.

There is reason to think that an independent right to alienate land without the consent of the Tribe is unknown in New Zealand.—[Bishop of N. Z.] In the Bay of Islands, where land purchases were first made, the Native of every degree of rank sold his land without reference to any other authority.—[Rev. J. Hamlin.]
The rights of ownership, whether in one or many joint proprietors, were not alienable without the consent of the tribe.—[Bishop of N. Z.] Often there will be only one main proprietor or take [source of title]; but if he be not a Chief of rank, the head man will take upon him to dispose of the spot. Often, and more frequently, there will be several take, and one of them will sell without consulting the others.—[Archdeacon [unclear: Maunsell].]page break
The New Zealanders do not forfeit their territorial rights by being carried into captivity or becoming captives. ………I have known slaves tenaciously maintaining their territorial rights while in a state of captivity. [Chief Protector Clarke.] The question turns upon whether slaves taken in war, and Natives driven away and prevented by fear of their conquerors from returning, forfeit their claims to land owned by them previous to such conquest. And I most unhesitatingly affirm that all the information I have been able to collect as to Native customs throughout the length and breadth of this land, has led me to believe and declare the forfeiture of such right by Aborigines so situated. In fact, I have always understood that this was a Native custom fully established and recognised, and I do not recollect ever to have heard it questioned till (now.) [Commissioner Spain.]
The Government has denied the Seignorial and Tribal Right at the Waitara. [Bishop of New Zealand and Clergy.] I have not been able to discover that any such thing as Manorial Right distinct from ownership in a greater or less degree, has been lodged in the Chief of a District, in the Chief of a Tribe, in the Chief of a Hapu, or in any other person of the Aborigines. [Rev. J. Hamlin.]
It is established by a singular concurrence of the best evidence that the rules above stated [in his Pamphlet] were generally accepted and acted upon by the Natives in respect of all the lands which a tribe inherited from its forefathers. [Sir W. Martin.] I have no hesitation in saying that the rules which Sir W. Martin lays down as established by a singular concurrence of the best evidence, are not rules of Native origin………….I, in fulfilment of this duty, which rests upon me not only as a loyal citizen but as an agent in creating this national obligation [the Treaty of Waitangi], am bound to say that Sir W. Martin ascribes to the Natives rights which they never possessed, and claims for them privileges to which they have not a shadow of title. [Mr. Busby]page break
Over the uncultivated portions of territory held by a Tribe in common, every individual member has the right of fishing and shooting. [W. Swainson.] 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. [Sir W. Martin.]
Ordinary freemen (tutua) cannot alienate that land, which is absolutely their own for all practical purposes, but is not to be disposed of in a manner contrary to the supposed interests of the tribe. [Archdeacon Hadfield.] When any member of a Tribe cultivates a portion of the common waste, he acquires an individual right to what he has subdued by his labour; and in case of a sale, he is recognised as the sole proprietor. [W. Swainson.]
A Tribe never ceases to maintain their title to the lands of their fathers. [Chief Protector Clarke.] The title or claim to land by Tribes existed no longer than it could be defended from other Tribes. [Native Board.]
The right of each Tribe to land extends over the whole of the tribal territory, and entirely precludes the right of any other Tribe over it. [Archdeacon Hadfield.] No Tribe has, in all instances, a well-defined boundary to its land as against adjoining Tribes; and the members of several other Tribes are likely to have claims within its limits. [Native Board.]
Conquest, unless followed by possession, gives no title. So distinctly is this principle recognized, that I have no doubt that any attempt to support and maintain the validity of titles derived from conquest only, would be met by a most determined resistance, even if attempted by Her Majesty's Government [Chief Protector Clarke.] Conquest alienates the land, but it has its quibbles. Conquest and occupation give a valid title; conquest without occupation is doubtful. If the conquered party return, occupy and hold the land from which they were driven, the land is theirs. If the conquered people return to their land by permission of the conqueror, the land does not become theirs unless a transfer of the land is made to them by the conqueror. [Rev. J. Hamlin.]
Their right [of individual members of the tribe] was a good holding title as against every other member of the tribe. They might exchange land among themselves, but no one could alienate without the consent of the tribe. [Archdeacon Hadfield.] Whatever piece of ground an individual cultivates for the first time, it becomes his own private property if he be a claimant of the land in which it is situated: and when sold he only would be entitled to receive the amount. [Rev. R. Taylor.]
The individual claim to land does not exist among the New Zealanders according to our acceptation of that term. [J. White.] The New Zealander has no law that I am aware of, by which he is debarred from asserting his individual right to land: it may be a small portion, nevertheless it is an individual right, [C. O. Davis.]