Notes on Sir William Martin's Pamphlet Entitled the Taranaki Question
"A: the Waitara, for the first time, a new plan was adopted."
This may be called the central point of Sir William Martin's argument.
No one will deny that one of the things most to be desired in the existing state of the relations between Her Majesty's Government and the Native race, is the establishment of some tribunal in which the varying rules of Native tenure shall acquire some settled form, and to the decisions of which they will yield a peaceful submission.
But the difficulties in the way of doing this are immense. It can only be done with the complete assent of the Natives themselves. Without it the establishment of a Land Court to determine conflicting claims of title among the Natives, would only add to the difficulties which already exist in the working of the ordinary Courts of Law in all cases where the Natives are concerned. And at Taranaki especially, the establishment of such a Court would have been a mockery so long as the various sections of the Ngatiawa were resolved to fight out their conflicting claims to land.
It has been amply shown in public documents that the Governor's Proclamation of February, 1858, was openly violated by the Natives. At the very time that Teira's offer was made to the Governor they were at war, and peace was not made till six months afterwards. To have required them to come in and peaceably submit to the decision of a Court on the very questions which they were then fighting about, would have been absurd, because there was not the least chance of their doing it. They were resolved not to make peace. Wiremu Kingi himself, when the Bishop of New Zealand on the 18th February 1858, earnestly prayed him to make peace, replied, "Ekore matou e whakarongo' (We will not listen).
But is it fair to lay so heavy an accusation against the Governor, as it the question had never been considered?
The question was carefully considered by the Legislature in the discussions on the Native Territorial Rights Bill of 1858. In that Bill both Houses of the General Assembly agreed to the following declaration (Section VIII.):—
"It is hereby declared that no Court of Law or Equity within the Colony hath, or ought to have, cognizance of any question of or affecting the Title or right of occupancy of the Aboriginal Natives, as amongst themselves, to or over any lands or hereditaments over which the Native Title is not extinguished; except so far as the Native Circuit Court may have such jurisdiction under and by virtue of any regulation made in pursuance of the 'Native Districts Regulation Act, 1858'."
Probably those two branches of the Legislature were of opinion that the territorial rights and obligations of the Natives were not subject to the interpretation of our Courts. These rights stand upon Treaty, of which the Crown is, rightfully, the sole interpreter. This is well put by Mr. Busby:—
"The Native title is not known to the law, nor is it subject to, or entitled to be dealt with by law. It rests exclusively upon a Treaty entered into at the time between the British Government (who had recognised the New Zealanders as competent parties to a Treaty) and the New Zealanders. To maintain the faith of Treaties there exists no law. And I confess that, in the responsibility of the Queen's Governor acting in the name and on the behalf of the Queen, so long as he is not controlled by what is called a responsible ministry, I see a greater security for the due fulfilment of the Treaty, than would be derived from any judicial tribunal which could be created for the purpose, could such an anomaly exist as a tribunal to try the administrative acts of the Government in matters of so high an import as the fulfilment of a Treaty. The issue, as it appears to me, was not as Sir William Martin puts it (page 75), whether page break 'the Governor has no more right to seize land upon the decision of his own 'agent than any other land buyer would have;' but whether he was maintaining the obligations of the treaty in defending the rights of Teira against the interference of Kingi with those rights."
The Law Officers of the Crown also decided in December, 1859, that the Colonial Courts had no cognizance of questions of Native title or occupancy. But the two Houses of Assembly proposed a tentative and flexible means by which a jurisdiction in such cases might be established, with the assent and co-operation of the Natives themselves. They proposed, as one means of ascertaining Native title, that "any question of, or affecting the Native title to, or "right of occupancy over, lands comprised in any such Certificate, may be "determined by the Governor in Council, or otherwise as the Governor in "Council shall appoint." It was intended that the Executive Council should act through the medium of the Native Circuit Courts established by an Act of the same Session. The Bill was reserved for the signification of Her Majesty's pleasure, and was disallowed on the Governor's advice, which, however, had no reference to this particular subject.
In communicating this determination to the Governor, Lord Carnarvon, in his despatch of the 18th of May, 1859, expressed himself as follows:—
"It is no doubt most desirable that the disputes of the Natives respecting the right to land should no longer be settled by arms;" but, "I am bound to ask myself whether, in case the decisions of the Governor in Council on titles to land should be resisted by the Natives, the British Government are prepared to promise such a military force as may be sufficient to enforce them." "If, as in this case, no such expectation can be held out, it is more than questionable whether the moral influence of the European Government would not suffer by the issue (to Natives) of certificates of title, which the Natives would be at liberty to disregard with impunity."
The Imperial Government refused its assent to this plan, which involved the determination of Native title. It resolved to retain in its own hands, through the Governor alone, a free discretion as to the course which should be taken wherever Native title was in question; and not to incur the responsibility of undertaking to give effect to decisions made by any one not immediately responsible to the Crown.
The Colonial Legislature, therefore, and the Imperial Government, both decided against an independent Court. It has been shown at note p. 47, 48, that Archdeacon Hadfield recommended that all transactions with Natives in reference to the purchase of land should be entrusted to those only who were directly amenable to the General Government. It may also be added that during the many years Sir W. Martin held the office of Chief Justice there is no record of his having taken any steps towards the establishment of such a tribunal as that which he speaks of in his pamphlet.
It was hardly just, then, to blame the Governor for not establishing an independent tribunal in which the conflicting claims of Wiremu Kingi and Te Teira could be determined. It was hardly fair to leave altogether out of consideration the state of internecine war in which the sections of the Ngatiawa concerned in those conflicting claims were at that very time involved.—[See also Notes to p. 47, 48, 82.]