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

No. 1. — Memorandum on the origination and management of Native Reserves in the Southern Island

page 263

No. 1.
Memorandum on the origination and management of Native Reserves in the Southern Island.

The system of making Native reserves, originated with the New Zealand Company, and in the instructions to its principal agent, Colonel Wakefield, who was intrusted with the purchase of land for the Company, one. of the principles laid down was, that in every purchase a portion of the territory ceded, equal to one-tenth of the whole, should be reserved, and held in trust by the Company for the future benefit of the chief families of the ceding tribe. It was considered advisable to adopt this course in preference to making reserves for the Native owners in large blocks, as had. been the common practice in regard to Indian reserves in North America, as that plan tended to impede settlement, and to encourage the aborigines to continue in a state of barbarism. The Company, therefore, directed that the reserves for the Natives should be set apart in the same way, in the same allotments, and in the same effectual manner as if the reserved lands had been purchased from the Company on behalf of the Natives. Accordingly, in pursuance with this intentiou, when the preliminary sales of land in the first settlements were held, the Company reserved one-tenth of the land orders for the chief families of the tribe by whom the land was originally sold, in the same way precisely as if the lots had been purchased on their behalf; and the priority of choice for the Native allotments was determined by lot, as in the case of actual purchasers, the selection being made by an officer expressly charged with that duty.

These reserves of land were looked on as far more important to the Natives than anything that could be paid to them in the shape of purchase-money, as, however high they were paid, the consideration given would only afford but a brief enjoyment, and, when it had passed away, the' recipients be but little better for the gift, while these lands would remain with them as a lasting possession.

By way of a recompense for the moment, as well as in deference to public opinion, the Company, however, paid the Natives what was deemed, according to received notions to be a sufficient price; but they considered the real worth of the land purchased from them to be the reserves set apart for their maintenance, and for schools, hospitals, and other useful establishments.

It was to guard the Natives against that common failing of all aboriginal races—want of foresight, and to secure them from the dangers to which colonization exposed them if denuded of all landed property, that the Company invented the plan of Native reserves, as these were possessions that could not be squandered away at the moment, but, as time glided on, their value would progressively increase, and in place of a barren possession which they parted with, the Natives would receive in return a property of considerable worth, that, if properly administered for their benefit, would ultimately prove of incalculable value.

In August, 1839, shortly after his arrival in the Colony, Colonel Wakefield concluded three purchases from the Natives; and, in pursuance with the instructions received from the Company to the effect that, in every pukapuka, or contract, entered into with the Natives for the purchase of land, care should be taken to mention that a proportion of the territory ceded, equal to one-tenth, should be reserved and held in trust by the Company for the future benefit of the Natives, he made it a condition of each of the Deeds of Purchase that a portion of the land ceded should be set apart as aforesaid.

In the first deed the quantity is definitely stated, but the second and third deeds merely contain a promise that land shall be set apart for the Natives, but the quantity is not specified. The proportion however to be set apart in fulfilment of the Company's scheme, in so far as the Nelson settlement was concerned, was ultimately fixed by the prospectus issued by the Company in London (dated 15th February, 1841), in terms of which the Company engaged subject to arrangement with Her Majesty's Government to add to the 201,000 acres offered for sale, a quantity equal to one-tenth thereof as Native reserves, so that the wholo land to be appropriated within the settlement was 221,100 acres, out of which 20,000 formed the proportion to be set apart as Native reserves, to consist of 100 town sections of one acre, 100 suburban sections of 50, and 100 rural sections of 150 acres each.

The system thus commenced was adopted only in the three first settlements founded by the Company, namely, Port Nicholson, Nelson, and New Plymouth, although reserves were also made for the Natives in the settlements of Otago and Canterbury, founded also under their auspices; these, however, were merely occupation reserves, being land excluded from purchase, and could scarcely be considered Native reserves under the New Zealand Company's scheme.

It would seem by the 13th clause of the agreement of 1840, that the Government had the power to make reservations of lands within the Company's settlements for the benefit of the Natives, in pursuance of the Company's engagements to that effect; and Lord Stanley, in a despatch to Governor FitzRoy, dated the 18th of April, 1844, referring to Native reserves, says:—

"There can be no question that they should be taken out of the Company's lands; the Company had, in former instructions to their agent, provided for reserving one-tenth of all lands which they might acquire from the Natives for their benefit. By the 13th clause of their agreement, of November, 1840, the Government was, in respect of all to be granted to them, to make reservations of such lands for the benefit of the Natives, in pursuance of the Company's engagements to that effect. It seems quite plain, therefore, that the Government is to reserve for that purpose one-tenth of the Company's land."

In October, 1840, Mr. Edmund Halswell, a member of the English bar, was appointed by the New Zealand Company to the office of Commissioner for the management of the lands reserved for the Natives in their settlements, and general directions were given to him for the administration of the property.

After the Company resigned the Native reserves into the hands of Her Majesty's Government, Mr. Halswell was superseded in the management of the Trust Estate, and the trusteeship of the Native page 264reserves in New Zealand was vested by Governor Hobson in the Bishop of New Zealand, the Chief Justice, and the Chief Protector of Aborigines.

Besides the management of the Native reserves, it was intended that the Bishop and his colleagues should have control over all moneys accruing from the proportion of the produce of land sales within the Colony, to be devoted to Native purposes, which might prove from time to time to be disposable out of the funds so to be set apart for this purpose, after paying the expense of the Protector's department; the funds accruing from both sources to be expended in the establishment of schools for the education of youth among the Aborigines, and in furtherance of such measures as might be most conducive to the spiritual care of the Native race, and to their advancement in the scale of social and political existence.

The principle of setting apart 15 per cent on the produce of land sales annually, does not appear to have been adhered to after the second year of the settlement of the Colony (1842), at the end of which period there was a sum of £4110 16s. 2½d. due to the said Fund, which amount was then chargeable with the expense of the Protector's department for the year; but it would seem that a large proportion of this money must have been subsequently swallowed up in the pressing requirements of the Colony, instead of being devoted to the purpose for which it was intended; and, although the surplus (£4000) was entered upon the schedule of the debts of the Colony, the Commissioner of the Treasury refused to recognize it as a claim against the Imperial Government, and the original instructions regarding the setting apart of the aforesaid per centage, were ultimately lost sight of during the administration of the affairs of the Colony under Governor FitzRoy.

The proposal made by the New Zealand Company, in 1841, to advance £5000 for Native purposes, on mortgage of the Native reserves in the Company's settlements, was objected to, it being considered unadvisable to sanction any mode of raising money upon the security of the Native reserves which might by any contingency cause the alienation of these lands from the beneficial use of the Aborigines.

In 1841, the Chief Justice resigned the office of Trustee, as he found the duties incompatible with his official position, for, in the event of the Trustees being engaged in any lawsuit, he would be both judge and party in the suit at the same time; and Mr. Halswell was subsequently appointed to the sole charge of the reserves at Wellington, as agent of the Trust vested in the Bishop and his co-Trustee; and Mr. Thompson, the Police Magistrate, was appointed to fill a similar office in Nelson.

In 1842, Mr. Thompson, in his capacity as Agent of Native reserves, selected 100 sections of one acre each in the town of Nelson, and 100 suburban sections of 50 acres each in the Moutere and Motueka districts, and acted as local manager of the property until June, 1843, when he perished in the Wairau massacre.

After the death of Mr. Thompson, the Bishop appointed Mr. M'Donald his agent.

In February, 1844, the Bishop resigned the office of Trustee, and in the same year "The Native Trust Ordinance" was passed by the Legislative Council for appointing a Board of Trustees for the management of property to be set apart for the education and advancement of the Native race. The Trustees named by the Act were His Excellency the Governor, the Lord Bishop of New Zealand, William Spain, Esq., so long as he held the office of Commissiomer of Land Claims, and the Chief Protector of Aborigines. This Act was not brought into operation, although it received the Royal confirmation, in consequence of the terms of the last clause not being fully complied with, namely, that the confirmation of the Ordinance should be notified in the Gazette before it came into operation.

The establishment of Trustees for Native reserves, as originally contemplated, not being carried out, the Government appointed Boards of Management, and in June, 1[gap — reason: illegible]48, Messrs. Poynter, Carkeek, and Tinline were appointed a Board of Management of the Native reserves for the district of Nelson. The Board retained the management of the property till the middle of the year 1853, when the sole management devolved upon Major Richmond, who was then Crown Lands Commissioner, and who was ultimately succeeded, in the year 1857, by Messrs. Domett, Poynter, and Brunner, by appointment dated 1st December, 1856, as Commissioners under "The Native Reserves Act of 1856."

In September, 1862, an Act was passed by the General Assembly, known as "The Native Reserves Amendment Act, 1862."

This Act provides that, on and after a certain date to be fixed by the Governor by proclamation, all the powers and authorities which by "The Native Reserves Act, 1856," were vested in Commissioners, shall vest in and may be exercised by the Governor. It also provides that the Governor may delegate the whole or any of the powers competent to Commissioners, to any person or persons, for any period subject to such regulations, restrictions, or stipulations as may be specified in the Order of Delegation.

In conformity, therefore, with the provisions of the aforesaid Act, a proclamation was issued on the 4th August, 1863, fixing the 1st September, 1863, as the date for the Act to come into operation.

The first delegation of management of the Native reserves in the northern portion of the Middle Island, under the Act of 1862, was made to Mr. James Mackay, junr., on the 9th November, 1863, and on his removal to Auckland in 1864, the appointment was conferred on Mr. Alexander Mackay, the present Native Commissioner for the South Island.

The following is a list of the town sections originally selected as Native reserves by Mr. Thompson in 1842, viz.:—Nos. 5, 20, 21, 46, 47, 50, 62, 63, 64, 65, 66, 93,144,148,152,159,162,177,191,194, 198, 203, 205, 227, 229, 231, 233, 241, 244, 248, 253, 256, 261, 263, 265, 266, 267, 269, 283, 284, 294, 303, 305, 307, 344, 367, 382, 387,406, 416, 417, 443, 521, 522, 529, 537, 551, 561, 575, 582, 583, 598, 608, 625, 626, 650, 706, 710, 718, 722, 768, 777, 778, 784, 797, 798, 828, 831, 855, 858, 860, 897, 905, 911, 926, 939, 941, 943, 945, 951. 953, 954, 956, 1051, 1084,1088,1091,1092,1096,1099.

Owing to the impossibility of carrying out the original scheme of the Nelson settlement, and the consequent necessity for some equitable compromise, the inhabitants applied to the New Zealand Company to modify the arrangements, so as to allow the landowners the option of acquiring fresh land and promoting concentration by means of re-selection under certain conditions. In furtherance of this page 265object, but not in the precise mode suggested by them, the Company proposed a new set of regulations in October, 1845. These, however, were received with great dissatisfaction, and were consequently withdrawn. The settlers continued to press for a remodelling of the original scheme, and the directors therefore made another attempt to carry out such an alteration.

Negotiations ensued between a committee of the resident land purchasers on the one hand, and the Company's agents on the other; and certain resolutions were come to by the Nelson Committee, at a meeting of land purchasers and agents, held in Nelson, on the 30th of June, 1847, which were subsequently concurred in by the Company, subject to certain modifications.

The following extract from the aforesaid resolution has reference to Native reserves:—

"One subject, arising out of our proposed plan, but not coming strictly, perhaps, within the scope of our own duties, we yet consider it our duty to make a few remarks upon. We allude to the Native reserves.

"With respect to the rural sections, it is understood that the Governor, in making the large reserves he has for the Natives at the Wairau, has released the Company from laying out and choosing the 100 rural sections according to the original scheme, but in the case of the town and suburban sections, the effect of our proposal would be to allot a much larger proportion than one-tenth of the land actually sold to the Natives. How far, now that the Crown has taken these reserves into its hands, any alteration in them would be sanctioned, is a question; but we would suggest a memorial being addressed to the Governor, with a view to limit the number of town and suburban reserves to one-tenth of the land actually sold, so as to throw open the remainder for present choice."

In compliance with a proposition to that effect subsequently made by the Resident Agent of the Company on behalf of the land purchasers, the Governor consented to a reduction of the number of the Native reserves proportionate to that proposed in respect of the whole settlement. This led to the surrender of 47 of the town reserves, but the reduction was not extended to the suburban sections, the following is a list of those relinquished:—Nos. 20, 21, 46, 47, 191, 194, 253, 256, 303, 382, 387, 529, 551, 561, 575, 608, 625, 626, 650, 706, 718, 722, 768, 777, 778, 784, 797, 798, 828, 831, 855, 858, 860, 897, 926, 939, 941, 943, 945, 951, 953, 954, 956, 1051, 1084, 1088, 1091.

With reference to the large reserves in the Wairau alluded to in the foregoing extract, as having released the Company from selecting the 100 rural sections according to the original scheme, unfortunately for the interest of the Trust Estate, these reserves, which consisted of two large blocks containing an approximate area in the aggregate of [gap — reason: illegible] 248 acres set apart on the first sale of the district by the Natives in March, 1847, were subsequently included in the second sale to the Government in 1853, without any precaution being taken to set apart a sufficiency of land in satisfaction of the quantity the Trust was entitled to under the original scheme as rural land.

The following is a list of the original suburban sections selected as Native reserves in the Moutere and Motueka districts, under the New Zealand Company's scheme:—

Moutere.—Nos. 45, 69, 71, 73, 75, 84, 85, 137, 138, 144, 145, 147, 148, 151, 201, 202, 205, 206, 213.

Motueka.—Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9,10, 11, 16, 20, 21, 22, 28, 29, 33, 34, 35, 36, 47, 48, 73, 74, 79, 80, 82, 92, 93, 111, 113,117, 118, 122, 123, 124, 126, 127, 129, 132, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 157, 159, 160, 161, 168, 169, 188, 186, 187, 192, 199, 206, 207, 208, 221, 222, 223, 234, 236, 240, 241, 242, 253, 256, 260, 262, 263, 264.

In 1844, at the time of Mr. Commissioner Spain's inquiry into the New Zealand Company's claims to land in the Nelson settlement, Mr. G. Clarke, the Sub-Protector of Aborigines, recommended the exchange of a number of the sections selected as Native reserves in Motueka in lieu of an equal number of suburban sections in the same district, which were found to be in the occupation of the Natives. This recommendation was subsequently acted on, and eight Native reserve sections, viz., Nos. 7, 8, 10, 11, 16, 28, 256, and 252, were exchanged for suburban sections, Nos. 162, 163, 164, 182, 188, 212, 219, and 220.

The whole of these sections had been previously awarded to the Natives by Mr. Commissioner Spain, together with eight other sections, sixteen in all, in fulfilment of the arrangement made between Captain Wakefield and the Natives, shortly after the arrival of the preliminary expedition at Nelson, to the effect that they should retain a considerable portion of the Big Wood, at Motueka, then in cultivation by them.

The following suction were awarded to the Natives of Motueka by Mr. Spain:—Nos. 157, 159, 160, 161, *162, *163, *164, *182, *183, *187, *188, *212, *219, *220, 241, and 242.

Besides the exchange alluded to above, the Board of Management found it necessary to make further alterations, in consequence of the Natives having located themselves on many of the purchased sections in the district. To obviate any difficulties that might eventually ensue from these [gap — reason: illegible]croachments, the Board surrendered Native reserve sections, Nos. 20, 29, 35, 36, 73, and 74, for the sections encroached on, viz., Nos. 181, 184, 210, 211, 218, and 243. Upon five of these sections considerable cultivations had been made, and it would have been next to an impossibility for the European owners to have wrested possession of the land so encroached upon by the Natives, from the numerous occupants.

Irrespective, however, of the advantage gained for the Natives in carrying out this arrangement, it was also of great benefit to the Trust Estate, inasmuch as the land taken in exchange by the Board was of superior quality to the laud given up, and being contiguous to the great bulk of the Native estate in the Wood at Motueka, it was, moreover, of much greater value than detached sections at a distance from what was then the inhabited portion of the district.

In addition to the Company's tenths certain other lands were excepted for the Natives in the

Note.—The sections marked with an asterisk are those for which an equal number of Native sections had to be given in exchange.

page 266awards to the Company, in conformity with certain resolutions agreed to at a conference held in Wellington in January, 1844, between the local Government and the Company's Principal Agent to the effect, "that the pahs, burial places, and grounds actually in cultivation by the Natives, situated within any of the lands appropriated to the New Zealand Company should be retained for the use of the Natives, the terms 'pahs' and 'cultivations' to be understood to mean as follows:—'That the 'pah' should be considered to be the ground that is fenced around the Native houses, including the ground in cultivation or occupation around the adjoining houses without the fence; and that the nature and meaning of the word 'cultivations,' were to be understood to apply to those tracts of country which were in use by the Natives for vegetable productions, or which have been so used by the aboriginal Natives of New Zealand since the establishment of the colony."

The lands of this description in the settlement were chiefly situated in Massacre Bay, and consisted principally of cultivated grounds scattered in small patches of a few acres, in all manner of fantastic shapes throughout sections owned by European proprietors.

In 1847, Governor Grey, in order to remedy the inconvenience caused by the vague description given of these lands, directed them to be surveyed as described in the award to the Company, and in accordance with the original understanding.

In 1853, Sir George Grey granted a number of the Native reserve sections at Motueka—in all 918 acres—to the Bishop of New Zealand, as an endowment for an industrial school for the education of children of both races, and of children of other poor and destitute persons being inhabitants of islands in the Pacific Ocean.

This grant was looked upon as a violation of the contract on which the settlement was founded, and in contravention of the original intention for which the lands were set apart by the New Zealand Company.

A special Committee of the Nelson Provincial Council expressed their disapprobation of the grant, and a memorial was forwarded by them to the Secretary of State for the Colonies, praying that the necessary steps might be taken to set the grant aside, but although, permission was subsequently given to test its validity by a writ of scire facias, the matter was allowed to drop as other interests were involved, which it was considered inexpedient to disturb.

The origin of the numerous grants that have been made in various parts of the Colony, appears to have sprung from a correspondence in the years 1849 and 1851, between the then Governor, Sir George Grey, and Earl Grey, the Secretary of State for the Colonies, in which the Governor points out the advantages that would ensue to the promotion of industrial schools for the Natives, if grants of waste lands of the Crown were made, to provide for the subsistence of the children educated thereat, and suggests that the advantages proposed should be extended to children of Natives of islands in the Pacific Ocean.

Earl Grey, in reply, approved of the scheme as being salutary and politic, and expressed his satisfaction of the general sufficiency of the instrument by which it was proposed to convey the lands to be set apart for the maintenance of the schools.

Had the original intention been adhered to of setting apart Crown land as an endowment for these institutions, no objection could have been taken to the appropriation of land for so laudable a purpose, but, from some unexplained cause, these appropriations were made to include lands set apart solely for the Natives under express agreement with the Imperial Government, under the terms of the prospectus of three of the settlements of the New Zealand Company, and as part of the consideration for the cession of Native territory.

The purpose of the reserves was clear and exclusive, and forbade their use for general endowment, and had "The Native Trust Ordinance, of 1844," been in operation, these appropriations for general purposes could not have been made, as its provisions expressly forbade alienation except by lease, and declared all charges or incumbrances on the Trust Estate to be void.

The right of pre-emption being vested in Her Majesty by the Treaty of Waitangi, and certain Acts and Ordinances having been passed prohibiting private individuals from acquiring Native lands, under penalty, a system of land purchasing was commenced by the Government in 1847, and continued till May 17th, 1865, at which date it was done away with by Proclamation. "The Native Land Act, of 1862," permitting the Natives to alienate their lands by private sale, or otherwise, having been confirmed by Her Majesty, the continuance of the Land Purchase Department, by which, prior to its enactment, the cession of Native lands to the Crown had heretofore been conducted, was rendered unnecessary.

In the purchases effected at various times and in various places portions of almost every block purchased were reserved by the Natives, and in some cases by the Commissioner who negotiated the purchase under instructions from the Government.

There are four classes of reserves in the Southern Island, viz.:—

1.Reserves set apart by the New Zealand Company in the Nelson settlement under the original scheme. This class comprises an acreage of 5053 acres, a large proportion of which is in the occupation of tenants, and the revenue accruing is spent in various ways for improving the general condition of the Natives. The total amount collected from the estate since the year 1842, the period at which these lands were selected, to the 31st December, 1869, amounted to £12,634 13s. 3d.; and the expenditure on behalf of the Natives during that period was £11,432 11s. 11d., leaving a balance of £1202 1s. 4d. to the credit of the fund.
2.Reserves of the second class are lands that have been brought under the operation of "The Native Reserves Act, 1856," with the assent of the Natives. The reserves of this class are situated chiefly on the West Coast of the Province of Nelson, and in the County of Westland. A portion only of these lands are productive. The total revenue collected from the portion of the estate in the occupation of tenants since the 1st July, 1865, the date at which the portion alluded to first became occupied, to the 31st December, 1869, amounted to £14,361 19s. 07d.; while the expenditure for the same period was £10,366 9s. 5d., leaving a balance to the credit of the fund of £3995 10s 2d.page 267

Reserves of the third class are lands that have been excepted from sale by the Natives on the cession of the surrounding territory to the Crown, and set apart for their use and occupation. Of the reserves of this class very few have been utilized in the way of producing a revenue, the land being chiefly required for the use of the Natives.

The Natives in the Provinces of Canterbury and Otago have obtained titles, under the provisions of "The Native Lands Act," to the whole of the reserves of this class situated in these Provinces, during the sitting of the Native Lands Court there in 1868.

4.Reserves of the fourth class comprise the awards made by the Native Lands Court in 1868, in final extinguishment of all claims under the terms of Kemp's or the Ngaitahu Deed of 1848, in pursuance of which the Court set apart, in the Provinces of Otago and Canterbury, land to the extent of 4789 acres.

Besides the reserves alluded to above, a few parcels of land have been devoted to this purpose by the Superintendents of Provinces, especially in Canterbury.

According to a computation made by Major Heaphy in 1870, the quantity of land set apart in the Southern Island for Native purposes amounts to 121,733 acres. This quantity when averaged over the Native population in the Middle and Stewart's Island, gives 53½ acres to each individual.

But, besides the quantity stated, the Natives in the Province of Nelson are possessed of 51,170 acres, which if considered along with the reserves bring up the proportion to each Native in the Province of Nelson to 226¾ acres, and to each in the Middle and Stewart's Islands to 101¾ acres.

Alexander Mackay,

May 15th, 1871.