The Court opened at 10 o'clock.

The Rapaki Dispute.—Judgement.

The Chief Judge delivered the following interlocutory judgment:—the issues upon which it has been arranged that the Court should give an interlocutory decision are us follows:—

1.	Are the Rapaki Natives entitled to share the Rapaki reserve by their descent from the Ngatiahu tribe?
2.	Are all the descendants of the six old men and party equally entitled to the Rapaki reserve?
3.	Who are the descendants of the six old men at Rapaki?
4.	Have any Natives besides the descendants of the six old men a claim to the reserve by occupation?
5.	Have those claimants to the Rapaki reserve who now come from Kaiapoi not lost their right by having their abode at Kaiapoi from the time of the reserves being made?
6.	Would the alleged agreement made at Kaiapoi at Mr. Buller's suggestion alter the title to the reserves at Rapaki?

Upon the first and last issue the Court can give a clear and distinct opinion, but the answers to the other issues depend entirely upon the tracing of persons and their relationships, which cannot be done at this stage of the proceedings, and must await further evidence. The general opinion, however, which the Court feels itself able to give will render this subsequent proceeding a matter of no difficulty, and indeed will in all probability so far indicate the views of the Court as to render further evidence unnecessary, by enabling the parties to arrange between themselves to whom the Rapaki reserve should be granted.

As to the first issue, the Court is of opinion that the persons generally styled in the course of this trial "the Kaiapoi Natives" are not entitled to claim any share in the Rapaki reserve by reason of their descent from remote ancestors common to them and the persons similarly styled "the Rapaki Natives;" or, in other words, on the ground that they are all members of the Ngaitahu tribe. It has never been the rule of the Court to recognise such a claim, and even if stronger reasons had been shown than the counsel for the Kaiapoi Natives has been able to produce, the Court would have been very reluctant to depart from a rule which has now received the sanction of innumerable precedents.

The last issue must be answered in the negative. The admission of certain of the Rapaki Natives into the ownership of the Kaiapoi reserve appears to have been entirely voluntary on the part of the owners of the latter, and there is no evidence that they obtained or even sought for any reciprocal rights over the Rapaki reserve. The terms on which the Rapaki Natives were admitted to participate in the division of the Kaiapoi reserve are sufficiently indicated in the terms of arrangement of that reserve produced by Pita Te Hori, himself a Kaiapoi Native and a signer of the document, the whole instrument being, as counsel will remember, in Mr. Buller's handwriting:—"Tena atu etahi tangata, kei hea [gap — reason: illegible]tu ranei, he whanaunga ia no matou; a ko ratou anake te uru e ata whakaaetia ana e te runanga."—"There are other persons, living at divers places, who are our relatives, of whom those only shall be admitted to participate who shall be approved by the assembly." It appears that under this principle, or under the rules contained in the two preceding clauses of the instrument (relating to those men who had married Kaiapoi women, and to certain Port Levy Natives) the Kaiapoi assembly admitted many non-residents into their reserve—from Port Levy, 4; Wairewa, 6; Taumutu, 2; West Coast, 4; Waikouaiti, 1; Waitaki, Taieri, 1; Kaikoura, 1; Waimatemate, 1; [gap — reason: illegible]uapuke 1; Otakoukou, 1; North Island, 1; Rapaki, 18; besides 5 from Moeraki, whom the Court does not include in the above list, as it appears that part of the reserve at Kaiapoi was expressly made for them. Now, there is no doubt in the mind of the Court that this admission of owners of other reserves was made with the sanction of Mr. Buller. It has not been shown what was the official position of that gentleman in the sub-division of the Kaiapoi reserve, or under what law he was acting, but the evidence has clearly proved that he was appointed by the Government, and that the Natives recognised in him an officer of the Government armed with lawful authority, and whose advice or inj[gap — reason: damage]ctions. page 203they did not feel themselves at liberty to refuse or dispute, and although the arrangements made, as disclosed in documents placed before the Court, appear to have been spontaneous on the part of the Natives, there can be no doubt that the whole proceedings were managed by Mr. Buller, and that the Natives were assentients to his suggestions. If that gentleman had proceeded further, and applied the same principles in the sub-division of all the other reserves made for the Ngaitahu tribe, substantial justice would have been done, as far as these reserves are concerned, though an injurious confusion would have resulted, many Natives owning pieces of 10 or 20 acres of land in several widely separated parts of the country, all or most of which they could not possibly cultivate. But his operations began and ended with the Kaiapoi reserve; and we do not think that the expression "Kaiapoi should be a pattern" (tauira) was ever intended to mean more than a general agreement that the other reserves should be sub-divided, not that all the rules then adopted should be applied to all the reserves. Indeed such a construction would be impossible, for many of the provisions could not apply; such, for instance, as those relating to timber on reserves where there is no timber. But even if all applicable rules were to be adopted in future operations, as far as this case is concerned, the principle of admitted ownerships would be contained solely in the clause previously quoted, namely, that "such relations only should be admitted as might be agreed to by the owners of the reserve (under division)." The Court is therefore of opinion that none of "the Kaiapoi Natives," using that phrase with the meaning in which it has been used throughout this trial, have any claim over the Rapaki reserve, except, to use their own words, such "as shall be voluntarily admitted," a condition which does not constitute a right.

The 2nd, 3rd, 4th, and 5th issues are cognate in character, and cannot (especially the 3rd) be finally decided at present, but the general view of the Court on the facts end principles involved, may now be indicated with sufficient clearness to render subsequent proceedings simple. Mr. Mantell's evidence is corroborated by the Native testimony, and is conclusive that the owners of the land conveyed by the Port Cooper Deed, are represented by the signers of it, and for them the Rapaki reserve was made. In the judgment of the Court, these men and their representatives, and those whom they choose to admit as relatives, must be the grantees of the reserve now litigated. It is very probable that a list of names made out under this rule will comprise the whole of the living descendants of the six old men who took possession of the place after Rauparaha's invasion; but whether it does or not, the Court cannot move from the status of the title as fixed in 1849, when the great transactions with Mr. Mantell took place.

The Court feels that it would be leaving its duty only half discharged, if it failed to notice the character of the deeds purporting to extinguish the Native Title to this island, which have been produced before it. Whether the deed called the "Ngaitahu Deed" can have any effect whatever in law is not a question upon which it is necessary to pronounce any opinion, but having been compelled, in the course of these proceedings, to consider the terms and stipulations in this and other deed[gap — reason: illegible] produced, the Court could not fail to be struck with the remarkable reservation by the vendors of all their "pahs, residences, cultivations, and burial places, which were to be marked off by surveys, and remain their own property." This provision has not, according to the evidence, been effectually and finally carried out to the present day, nor has any release been sought for by the Crown. The witness, Mr. Mantell, who seems to have had great powers entrusted to him at one time by the Government, to carry out the intentions of the parties to these deeds, appears never to have retained them for a sufficient length of time to enable him to obtain from the Natives a Deed of Conveyance, whose validity could neither be questioned from incapacity in the grantee, nor from uncertainty as to the parcels, or reserved parcels. Conflicting instructions from the Government seem to have reached him with a curious rapidity, and finally his most useful powers were withdrawn before he had been able effectually to operate under them. The Court feels very strongly that it would be greatly to the honour and advantage of the Crown that the stipulations and reservations of these Deeds of Purchase, should without further delay, be perfectly observed and provided for. The present large assemblage of the persons interested has removed many of the difficulties which would otherwise attend the obtaining of the necessary agreement and release.

Lastly, although, as a rule, this Court carefully endeavours to avoid following equities, confining itself to creating and dealing with legal estates, it feels that it ought to express its clear opinion that the Kaiapoi Natives have, by adopting a principle in the sub-division of their reserve which this Court cannot follow, suffered a loss to the exact amount of the land apportioned, with Mr. Buller's sanction, to Natives for whom other reserves had been set apart; and although, as far as has been shown to the Court, that gentleman had no direct authority at law for what he did, and was in fact a volunteer, or might be compared to an executor de son tort, yet, as before observed, the evidence clearly shows that the Natives believed him to be a duly authorized officer of the Crown, and they acted without question upon his suggestions, and we think that natural equity requires that land to the amount lost by them should be found for them elsewhere by the Government. As the merits of the case may now be considered as decided, this will be the fit time to say that costs will not be given on either side.

Mr. Cowlishaw: I do not know whether anything ought to be allowed for the difference in the value of the land. Any land which the Kaiapoi Natives would get now, would not be so valuable as if it were in the vicinity of their township.

The Chief Judge: What I intended to convey was that the grant of land should be of equal value, not acre for acre. I apprehend the Crown will regard it in that light.

Mr. Cowlishaw renewed his application for the release of the £20 deposited in Court last week.

His Honor acceded to the application, and dismissed the case in respect to which the money was deposited.

Mr. Williams: I apprehend that the next step will be for the Rapaki and Port Levy Natives to come to the Court and give in a list of persons entitled to have the reserves in these places divided amongst them.

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The Chief Judge: The Court has decided against admitting the Kaiapoi Natives to share in these lands except those who may be voluntarily brought in. Wiremu Naihira and that class of men being shut out, I apprehend there will be no difficulty in the matter.

Mr. Williams: I have a list of the Rapaki Natives entitled to have the reserve divided amongst them, and I am not aware that this list contains any names except those living at Rapaki.

After some conversation between Mr. Rolleston and counsel on both sides, the following was agreed to and taken note of by the Court:—"Mr. Rolleston promises, on the part of the Government, to give to the Kaiapoi Natives not less than 650 acres of land with sea frontage, if possible, in consideration of the claims of the Kaiapoi Natives to Rapaki, Port Levy, and all other reserves heretofore made being abandoned. This will not affect the reservations in the Deed of Conveyance to the Crown."

Claim of Heremaia Mautai and others.

This was a claim to all that piece of land, containing from 12,000 to 15,000 acres, which lies between Lake Ellesmere and the sea on the East Coast of Canterbury.

Mr. W. Williams opposed on the part of the Crown; and Mr. Cowlishaw appeared for the claimants.

Heremaia Mautai deposed: I live at Wairewa. I have been living there a long time. The piece of land I claim is Kaitorete, near Wairewa. The land belonged to my ancestors. I have used the land a long time, and still live there. My father lived there. I never sold it, nor did I ever give anybody authority to sell it. I claim the land for the persons whose names are mentioned in the document put into Court. They belong to the same hapu. They and their ancestors have lived on the land.

Cross-examined by Mr. Williams: I cannot count the years we have resided on the land. I remember Mr. Mantell's coming here; I don't recollect the year in which he came. I was present at the meetings. I did not attend any meetings before Mr. Mantell came. I was living at Kaitorete at the time Mr. Mantell came. I never lived at Kaiapoi. I did not go to any meeting held by Mr. Kemp. I heard of the meeting of the Ngaitahu tribe being held at Akaroa. I heard it from Taiaroa that the meeting was in respect of the land at Kaiapoi, and that is the reason why I didn't attend. Mr. Kemp, I heard, came here to pay for Kaiapoi, Otakou, and Taumutu. My family belong to the Ngaitahu tribe. The other Natives all agree that I should get this land. I claim from ancestorship and occupation.

Mr. Williams took the preliminary objection, that the Court would not entertain claims through ancestorship.

The Chief Judge said that what he meant was, that the Court would not recognise claims which were traced from remote ancestorships, i.e., traced by ascending one line and down through the other. But the Court could not shut out a claim where direct ancestorship and occupation were shown.

Henare Watene Tawa deposed: I live at Wairewa. I have a claim to this land which is under investigation. I am living there now. My father lived and died there, and my father's father. I know how to read. All the persons in the list produced had a claim to the land. They all live on the land, and their fathers lived there before them. The land has not been sold.

Cross-examined by Mr. Williams: We claim the whole of the spit—that is, the whole of the land between Lake Ellesmere and the sea.

Mr. Cowlishaw said this was the plaintiff's case. It was now for the Crown to prove the sale of the land, and for him then to rebut it.

Mr. Williams said that he would produce evidence to show that the land had been conveyed to the Crown by what was known as Mr. Kemp's deed. Some of the land had been sold, and other portions occupied by pasturage license.

Mr. Cyrus Davie deposed: I produce the map of part of the Province of Canterbury. I was first at Lake Ellesmere in 1852, or 1853. I saw Natives there at that time. I did not see any cultivations on the land which is now claimed. I saw residences there. The extent of the whole of the spit is from 12,000 to 15,000 acres. It has been surveyed. Not a very great deal has been sold. The piece on which Birdling's inn stands has been sold. A portion has been reserved. The whole of the remainder is held under pasturage license—some of it by Messrs. Rhodes. I produce the license granted to the Messrs. Rhodes in 1852. A Crown grant has been issued for the land sold. I am not sure whether the reserve has been Crown granted; it was made three years ago.

Mr. Cowlishaw said he did not make a claim to the reserve or the piece of land which had been Crown granted.

Mr. Mantell, called on behalf of the Crown, deposed: I was here in 1848 and 1849, as Commissioner for extinguishing Native claims. I remember walking along the Lake Ellesmere spit at that time, in company with Natives and Europeans. I went for the purpose of making a reserve, in accordance with instructions. The only Maoris living there resided at Lake Forsyth. On arriving at Wairewa, I proposed to the Natives to make a reserve there, but they said it was within the French boundary. On referring to the man, I found such to be the case, and I pointed out the block in which it was competent for me to make a reserve. There was no application by the Natives for a reserve on the spit. Nothing was said with regard to it by the Natives. I was informed that their cultivations were towards the Peninsula at that time.

Heremaia Mautai re-called and examined by Mr Williams: There were 10 of us on the land when Mr. Mantell was there. None of us spoke to him. Mr. Mantell only came to our pah to get persons to carry his goods.

Re-examined by Mr. Cowlishaw: We were living at the end of the spit when Mr. Mantell came. We have used the spit for catching fish. There were eel pahs on the land.

By the Court: Part of the lake is salt and part fresh.

The Court adjourned for half an hour, resuming at 1.30 p.m.

Kiriona Pohau (called for the Crown) deposed: I live at Taumutu, near Wairewa. I know page 205Heremaia Mautai. I came from Taumutu and found Mr. Mantell at Wairewa at the time referred to. I belong to the same hapu as Heromaia, and am one of the claimants. I recollect Mr. Kemp's coming here. I went to Akaroa at that time. My name is to the deed produced; I wrote it. I said nothing to Mr. Mantell at the time he was at Wairewa. I knew Taiaroa, the father of Heremaia Mautai. Taiaroa was an uncle of mine; he was at the Akaroa meeting. Hoani Timaru and Wiremu Kar[gap — reason: illegible]titi were at the distribution of the money by Mr. Mantell.

Mr. Williams: Didn't the deed in respect to which you received the instalments of purchase- money include the whole of the land in the Ngaitahu block?

Mr. Cowlishaw objected to the question, but subsequently consented to admit the deed in evidence in order to save time. He also consented to the receipt for the instalment of purchase-money being put in.

Cross-examined by Mr. Cowlishaw: Mr. Kemp never saw the land in question. We excluded this land from Mr. Kemp's purchase.

After some conversation between the Hon. Mr. John Hall and the counsel on both sides, Mr. Cowlishaw asked for an adjournment of the case until next morning, in order to see whether any arrangement could be made in the matter.

The Chief Judge adjourned the case accordingly.

Claim of Wereta Tainui.

This was a claim to Kaikainui, which had been adjourned on the application of the claimant, in order that Mr. Mantell might depose to the truth of his assertion that the land had been reserved for him.

Mr. Mantell deposed: I know the reserve in question. Mr. Wills, a surveyor, set it out, under my instructions. The reserve is situated in the Ngaitahu block. The reserve was made for Tainui and Tipora. I gave Tainui to understand that if a village were placed on the adjoining land the reserve should be shared with the Tuahiwi Natives. I have been told that no village has been erected.

Wereta Tainui deposed that Tipora was dead He had children alive. If it were a large piece of ground, I should include Tipora's children, but it is a small place.

The Court ordered that a certificate of title be issued in favour of Wereta Tainui, for an undivided moiety, and Te Meihana Tawha and Matene Piki, for another undivided moiety, as soon as a plan shall be furnished. Ordered that the Court recommend to the Government that the estate be absolutely inalienable for ever, except by settlement for the benefit of the grantees and their heirs or successors, appointed under "The Native Lands Act, 1865."

Claim of Wikatoria.

Mr. Williams, for Wikatoria, handed in an arrangement which had been arrived at since the adjournment of the case. This was to the effect that the previous objectors to Wikatoria's claim to the Purau reserve had agreed that a Crown grant should be issued in her name.

The Court ordered that as soon as a plan shall be produced the estate be made alienable for ever, except by settlement for the benefit of the grantees or successors to be appointed under "The Native Lands Act, 1865."

Claims Dismissed.

The claims to Tairutu and Otoketoke were dismissed in the absence of the plan of the land claimed.

The Court then adjourned until 10 o'clock on Wednesday morning.