Enclosure No. 1 in No. 8.
Copy of letter from Mr. Alexander Mackay, to the County Chairman, Hokitika.

Sir,—

In further reference to your telegram of the 8th instant, respecting the application of Mr. Cassius to the County Government for £100, as compensation for the road constructed over his leasehold at the Arahura, in which you intimate that it is the opinion of the County Council that this amount should be paid out of the Native Trust Fund, in consideration of the quantity of land that was added to the Native reserve at Arahura for the purpose of making roads through it by the Government when required, and that because a reservation to this effect was not inserted in leases issued by the Commissioner—the Trust Fund, in the opinion of the Government, is now liable for the amount claimed; I would beg to point out that an entire misconception exists regarding the rights of the Government to take roads through the reserve wherever it is thought necessary, because land in excess of the original quantity was reserved in making the survey, as no agreement authorising such a proceeding was ever entered into between the Government and the Native owners. The idea of setting apart the extra quantity for road purposes must have originated with the Surveyor, Mr. Müller, who laid off the reserve, or else with the Provincial Government of Canterbury, in whose employ he then was; but, however the case may be, this would not constitute a right to take roads anywhere through the property, as the Natives have an indisputable right to a strip of land on each side of the Arahura, starting from the mouth of the river, and following each bank for such a distance as would include 2000 acres without deductions for any purpose; and it was further stipulated that, if it was found on survey that the reserve did not extend to Mount Tuhua, the Natives were to have the prior right of purchasing all the land that intervened at the rate of 10s. an acre. It will therefore be seen that the whole of the land between the mouth of the Arahura and Mount Tuhua, is virtually the property of the Natives, as they have only to exercise their pre-emptive right over so much of it as is not included in the original reserve, to make it ipso facto their own; and until the Natives express a wish to waive their right of pre-emption, the Government can have no claim to exercise any right over it, as the arrangement with the Natives partakes of a contract with the Crown, and must be respected as such by the Local Government, in whom the lands have become subsequently vested; and further, the Attorney-General gives it as his opinion, "that no power exists to take road lines without agreement and compensation where the land has been reserved by Natives out of other land sold to the Crown."

Respecting the excess of land alluded to, while I do not wish to throw any obstacle in the way of the Government, forming roads across the property when needed, it having been always my endeavour in laying off the reserves on the West Coast to act in unison with the Local Government, and concede such rights of road as were absolutely necessary for the interests of the public, in all cases where such reservations did not materially affect the interests of the Trust Estate, (and, could it have been foreseen at the time that a road would be required where this one is now being constructed, there is little doubt but that the necessary action would have been taken to secure it). I must remark that I was in no way required to make such concessions, as the Government are not entitled to more than one line of road through Native reserves on the West Coast, page 49in accordance with the original understanding with the Native owners; and in the case of this reserve the Government have exhausted the right conceded by constructing what is known as the Christchurch road through the property, and consequently have no further claim. I fail to recognize the right of the Government to step in and intersect the property with a net work of roads, as will be found, on reference to the plan, to have been done in the case of this reserve, notwithstanding an imaginary right to do so exists, because an excess of over 500 acres above the original quantity has been left for roads and thoroughfares; and if this is to be used as a pretext every time a road is required to be taken, whether through land occupied or otherwise, I would suggest that the Government should take the 560 acres, less the quantity already absorbed by roads, off the upper part of the reserve. The matter could then be easily settled by the Natives exercising their right of pre-emption oar the block so severed and finally put an end to any presumptive expectations.

I was under the impression that the question of roads had been amicably and finally settled, as on my proposing the same course I now allude to, to the Chief Commissioner of Waste Lands, Mr. Fraser, that gentleman suggested, that the matter of the excess should remain as it was, thereby implying, as I understood, that the Government would not again recur to their fancied right under it as a pretext for taking other road lines through the property; and it seems to me out of all reason that the County Council under these circumstances should now give it as their opinion that, because a reservation was was not made to take roads in all leases issued by the Commissioner, the Trust Fund is now liable for the amount claimed in this instance. It might as well be argued under these premises that every owner of land should take a like precaution, and in the event of his failing to do so, should be liable, in a parallel case with the one now in point, to compensate anyone occupying under him for a diversion for public purposes of any portion of the land so enjoyed.

Moreover, supposing, for the sake of argument, that it was incumbent on me to have taken this precaution, I could not have done so in this particular instance, as the lease in question was one of a few which were executed sometime prior to the survey of the reserve being completed, and before anything was known of the intention to include an additional quantity of land in the reserve for road purposes.

In conclusion, I would beg to point out as an instance that the Government have no right to take roads through the reserve without agreement and compensation, that in the case of the road required to the Bridge at Arahura, the land could only be obtained by taking it under "The Public Works Act, 1864," and compensating the occupant in the manner prescribed by that Act.