Copy of letter from Mr. Alexander Mackay, to Hon. the Native Minister.

Sir,—

I have the honour to enclose herewith a copy of my letter to the County Chairman at Hokitika, on the subject of roads through the Native reserve at Arahura, in compliance with your intimation that you were desirous of obtaining information on the matter to enable you to decide as to the justice of the claim, now urged by the member for Westland Boroughs on behalf of the County Government, that a sum of £100 demanded from the Government by Mr. Cassius—a tenant on the reserve at Arahura—in compensation for a road taken through his leasehold by the Provincial Government, should be paid out of funds arising from the Trust Estate, instead of by the County, on the ground that the Government have a right to take roads through the reserve wherever it is found necessary, because an allowance for road purposes had been included in the reserve.

The County Government appear to base this fancied right to take roads through the reserve because a surplusage of 560 acres was added to it by the Surveyor, Mr. Müeller, who executed the survey, and who, it is asserted, was specially employed as a servant of the General Government to survey the Native reserves on the West Coast, under the orders of the Commissioner of Native reserves, who, consequently, must have been cognizant of what was being done in the matter. With reference to the above, I would simply state that the Surveyor was not in the employ of the General Government, neither was he under my instructions in any way; I merely furnished him with page 48the necessary information as to the position and area of the reserves he was employed to lay off, and nothing further. He had no directions from me to include a surplusage in the reserves for road purposes; anything he did in that way was done at his own discretion, or else by the direction of the Canterbury Government, in whose employ he was. His services were engaged by the Hon. Mr. Hall, who was then Secretary for Public works at Canterbury, to lay off the reserves as an Officer of the Survey Department, and all plans of surveys executed by him were furnished to that Department. I was not supplied with plans until fully a twelvemonth after the work was completed, and then only in part, and in the case of the Arahura reserve, I had to go to the expense of having a plan prepared for the use of my own office.

It will be seen by the foregoing remarks that a misconception exists on the part of the County Government, as to the liability incurred by the Native Trust Fund, in having received so large an allowance for road purposes in this reserve; and I would submit that, if the fact of saddling the property with so large an excess, without the knowledge or consent of the owners, or anyone on their behalf, is to be made a pretext for taking land for road purposes anywhere through the estate, whether through occupied land or otherwise, and that all demands for compensation in consequence should be met out of funds accruing from the estate, it would be well that so expensive a gift should be returned to the donors.

During the time the present County formed a portion of the Province of Canterbury, the Chief Commissioner of Goldfields, Mr. Sale, admitted the liability of the Provincial Government to pay for the road in question, and agreed to give to the occupants the sum now claimed, £100, in the event of it being found necessary to take the road in that direction; there was no record, however, made of the offer, and the County Government are not inclined now to carry it out, but it is nevertheless a fact, as Mr. Sale informed me personally of his intention to do so.

Having refuted the assertion made by the County Government, respecting the employment of the Surveyor, it does not seem necessary to enlarge further on the question here, as the perusal of my letter to the County Chairman on the subject will put you in possession of my views of the case.

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.