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A Compendium of Official Documents Relative to Native Affairs in the South Island. Volume Two.

The Rapaki Dispute

The Rapaki Dispute.

The Chief Judge said, in respect to the application made by Mr. Cowlishaw on Saturday, that he did not see how he could release the £20 until some decision were arrived at on the merits of the case. The money would, therefore, have to remain in Court. And now as to the general issue, if they might so call it. He had been thinking what it was possible for the Court to do to facilitate some arrangement being come to; but after much consideration, he did not see how it was possible to do that until at least one side of the case was finished. He really did not see any possible opening for the Court to give an intimation of its views, unless upon that one general principle, that it was a rule of Court—a rule by which it was bound by old precedents since the Court had any existence—never to recognise claims on the ground of long-dated ancestorship, so long as modern relations could be found. He stated this at the commencement, and as a great principle he repeated it now, because it might be some guide to the learned counsel in this case if a question of the nature which it involved came to be decided, as it undoubtedly would in this instance. How could the Court form an opinion when it had not really heard the whole, even of one side? If anything were admitted, or the case of one side concluded, then the Court would be prepared to say something.

Mr. Cowlishaw: Substantially, I have given the Court my case. The farther evidence I will give will only be in confirmation of what I have already proved. My case is finished, with the exception of confirming it with further evidence. I think I put before the Court all I intended to prove.

The Chief Judge: I do not think it is possible that we can say anything yet. Supposing what you have stated is all true, until you have absolutely said that your case is finished, we cannot express our opinion.

Mr. Cowlishaw: The Court can decide on what is already before it, and if what it suggests is satisfactory to the parties interested, there would then be an end of the case.

The Chief Judge: That is what I would endeavour to do. I told Mr. Rolleston out of Court that my mind was on what had come before me, and he said, and not improperly, that he did not feel justified in doing anything until I made an announcement in open Court. I should be glad to do everything I could to facil tate the matter, but to express an opinion at this stage is an impossibility. In what position does Mr. Mantell's evidence stand? Shall I write it down as evidence in the case? Do you see any objection to that, Mr. Cowlishaw? It now stands de bene esse.

Mr. Cowlishaw: I do not see any objection to it going in as evidence, your Honor.

Mr. Williams: Mr. Mantell's evidence struck me forcibly that the Port Levy reserve was made large enough to include other claims which came in hereafter.

Mr Cowlishaw: I claim for a share in the Rapaki reserve, in consequence of the agreement at Kaiapoi, and the descent of the claimants from the six old men who went to reside at Rapaki.

The Chief Judge suggested that issues might be prepared, and, both counsel consenting, the Court adjourned for half-an-hour.

On resuming, Mr. Williams submitted the following issues to the Court:—

Are the Kaiapoi Natives entitled to have the Rapaki reserve by their descent from the

Ngaitahu tribe?

Are all the descendants of the six old men and party equally entitled to divide the Rapaki reserve?

Who are the descendants of the six old men at Rapaki?

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Have any Natives, besides the descendants of the six old men, a claim to the reserve by occupation?

Have these claimants to the Rapaki reserve, who now come from Kaiapoi, not lost the right by fixing their abode at Kaiapoi from the time of the reserves being made?

Would the alleged agreement, made at Kaiapoi, at Mr. Buller's suggestion, after the title to the reserves at Rapaki and Port Levy?

The Chief Judge: These issues would in fact decide the case?

Mr. Cowlishaw: If the Court feels that it can answer the questions at the present time, we could then make a settlement.

The Chief Judge: Then I understand that Counsel on both sides agree to leave the case on the evidence as it now stands?

Counsel replied in the affirmative.

The Chief Judge: It would be a convenience, almost a necessity, Mr. Rolleston, if you are in a position to tell the Court what position you have here, and whether the Government would recognise your acts, in case a settlement were come to.

Mr. Rolleston: I am in a position to state that I am here with full authority to bind the Crown in any arrangement that is considered fair between the Crown and the Natives, so as to come to a settlement of the case. I may state that these cases were brought before the Court in compliance with the promise of his Excellency Sir George Grey to the Natives, that they should come into Court with their claims; and, further, that the Government are very desirous that some definite line of action should be suggested by the Court in relation to these claims, if no fixed decision is come to by the Court itself.

The Chief Judge: What I propose to do, then, would be this: Of course I should want some time to consider these questions with the Assessor, and I propose to give you our decisions upon them to-morrow morning. In the meantime, I should like to ask Mr. Mantell a few more questions. I apprehend counsel have no objection to my doing so.

Counsel on both sides consented to Mr. Mantell being further examined.

Mr. Mantell, re-examined by the Court: I do not remember that any question concerning who were living at Rapaki after Rauperaha's conquest arose at that time. I believe I have in my possession, but not with me here, notes of what occurred at that negotiation. The Natives would be better able to depose as to who were living at Rapaki. I took a census of the Natives living on the Peninsula, by going from house to house and getting their respective ages, the numbers in each house, and what tribe they belonged to. The original Ngaitahu Deed is in the possession of the Court. The deed which I was to get executed was to render the assignment of the land to the Queen, and not to Colonel Wakefield, and the reserve at Kaiapoi was made in contemplation of the execution of the new deed. I don't think the reserve would have been smaller than it is. I hare my instructions with me now. I was appointed Commissioner for the extinguishment of Native claims. I did not venture to ask at the time whether my appointment was made in accordance with law. The instructions produced were the first which I received. I produce the draft deed which I was instructed to execute; it is drawn by Mr. Daniel Wakefield. I produce final instructions given to me by Mr Eyre, Lieutenant- Governor, after he returned from the north. I also produce the instructions to the effect that no new deed should be executed. [Witness read these instructions.] I made the Moeraki, Waikouaiti, and Purarakanui reserves, in pursuance of the Ngaitahu Deed, after I received these instructions. I believe also that a reserve of a certain extent has been given, through Mr. Guise Brittan, Crown Lands Commissioner here, and the General Government, to the Natives of Waimatemate. I never attempted to get a release from the Natives in respect to the clause in Mr. Kemp's deed. All I did in regard to Mr. Kemp's deed was to get as many additional signatures to the deed as I possibly could, in acknowledgement of the receipt of the purchase money instalments. I miss a great many influential men from the Court, who, I believe, are still alive. In marking out these reserves I was obliged to give way to the Natives, in order to effect an arrangement. I yielded to the Natives as to locality, but brought them down as to the quantity of land the reserves should contain. My impression is that the Government never intended to complete the reserves in accordance with the clause in Mr. Kemp's deed. The price paid to the Natives was not to be taken as the consideration for the land. They were also to consider the value of the reserves given to them and the promise that the Government would erect schools, and hospitals for the sick, and appoint officers to look after their interests. Although strenuous exertions have been made, these promises have not been carried out by succeeding Governments. These promises were not in the deed. Several letters have been received at Wellington, from Natives, laying claim to land which has never been given to them. Those letters have never been referred to the Supreme Court as petitions of right. The claimants do not understand English, and the lawyers don't understand Maori; and, to frame my answer as respectfully as possible, it is not convenient for the Government to interfere. I believe Mr. Buller's appointment referred to the Kaiapoi reserve only. He must have been appointed under Mr. Stafford's Government, by Mr. Weld. I believed at the time, and reported to the effect that the reserves were sufficient for the present and future wants of the Maoris. I have since believed that they are not sufficient.

Mr. Mantell went on to remark on the conduct of the Government in respect to the purchase of land from the Natives, and the making of reserves for them.

Mr. Rolleston said that these remarks could not be taken as evidence, except de bene esse.

Mr. Williams said it appeared to him, whatever might be the result of this case, that it was quite obvious the Natives were entitled to a certain quantity of land more than they have got; and the simplest way of getting out of the difficulty would be to allow the Port Levy and Rapaki residents to divide these two reserves between them—the Government giving to the Kaiapoi Natives an equal amount of land to that held by Natives of these places in the reserve at Kaiapoi. This, he thought, would be the best and fairest way of dealing with the Natives on both sides.

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The Chief Judge: Is it your desire, Mr. Rolleston, as concerned for the Crown, that the Court should express its opinion?

Mr. Rolleston: On behalf of the Government, I should be obliged by the Court declaring its opinion on the case, and suggesting a mode of settlement.

Mr. Cowlishaw: The Kaiapoi Natives would require a fishing settlement. The Court will take that into consideration, as it is an essential element that they should get a settlement of this description. I presume the Kaiapoi Natives would have no objection to trust the Government for the future. They might think that "a bird in the hand is worth two in the bush."

The Chief Judge: It is clear that it would be advantageous for the Crown and everyone concerned, if a settlement can be effected; the Crown can get a release of that clause in the Ngaitahu Deed, and have the whole transaction wound up. It would be well not to let the present opportunity pass, as so many Natives are in Christchurch at the present time.

Mr. Cowlishaw hoped the Government would act liberally with the Natives.

Mr. Rolleston: There is every disposition on the part of the Government to deal liberally with the Natives. I am here representing the Crown, and whatever opinions may be brought before the Court, as to the action of the Government, I am satisfied that at present the Government art prepared to deal liberally and justly with the Natives.

The Chief Judge: I cannot doubt it.

The Court then adjourned until 10 o'clock on Tuesday morning, when it will express an opinion on the case.