Copy of letter from the Under Secretary Native Department, to Mr. Alexander Mackay.

Sir,—

In reference to your letter of 6th March, 1869, upon the subject of the quantity of land absorbed by roads laid out by the Government of Westland, over the 2000 acre reserve at Arahura, I am instructed by Mr. Richmond to enclose a copy of some remarks made by the Attorney General on the question, and I must request that you will state whether any special arrangements were made on the subject of roads which led to the granting of 560 acres in excess of the area originally granted for the reserve.

Enclosure in No. 2.
Copy of remarks of Attorney-General on Mr. Mackay's letter of March 6th, 1869.

I know of no power to take road lines without agreement and compensation when the land has been reserved out of others sold to the Crown.

I suspect that when the survey was made there must have been some arrangements, otherwise why should 560 additional acres have been granted?

I think Mr. Mackay Should be asked if he knows anything of any agreement relating to the land, explanatory of the reasons for granting the additional land.

I think that the Secretary for Crown Lands, or the Colonial Secretary should call on the Commissioner for Crown Lands for an explanation.

Copy of a letter from County Chairman, Hokitika, to the Colonial Secretary.

Sir,—

I have the honour to forward herewith copy of correspondence with the Native Commissioner, respecting the making of a road to give access to Greek's and German Gullies, in consequence of the original road being washed away. I have also the honour to forward herewith a copy of a Resolution passed by the County Council on the 19th July, 1869, recommending that an Act should be passed to cause Native property to contribute an equitable share towards the construction of roads &c., through or adjoining such property, and to request that you will be pleased to cause such Steps to be taken as will give effect to it.

Enclosure 1 in No. 5.
Copy of Resolution of County Council of Westland.

Resolved,—"That in the opinion of this Council it is desirable that representations be made to both House of Legislature to pass an Act to cause Native property to contribute its just and equitable share towards the construction of roads, wharves and protective works, &c., through or adjoining Native property, and that the Council considers that 20 per cent. from the gross rent the page 46first year, when leased, and 8 per cent. every succeeding year, for maintenance, is a fair proportion of contribution."

Enclosure 2 in No 5.
Copy of Mr. A. Mackay's letter to Chairman County Council of Westland.

Sir,—

I have the honour to acknowledge the receipt of your letter of the 23rd instant, informing me that the County Government, in consequence of the roadway fronting Sections 38, 39, and 40, Native reserve, Arahura, having been washed away, propose now to make a road between Section 34 and 38, and along the rear of the Native reserve, for the purpose of giving access to Greek's and German Gullies, provided one-half of the cost is defrayed by the Native Trust, and, in reply, to state that I fully concur in the necessity opening up the proposed line of road, and will recommend the General Government to sanction such a proportion of the expenditure as may be fairly charged against the Fund, provided the road can be made at a moderate cost. In the meantime, perhaps, you will be good enough to furnish me with an estimate of the probable cost of the entire work to enable me, when writing to the Government on the subject, to state the amount to be borne by the Fund.

The length of the road to be made, judging from the tracing furnished, appears to be about 1¾ miles.

Enclosure No. 3 in No 5.
Copy of telegram from Mr. Mackay to Mr. Hoos.

One-half the amount named is much too large a proportion to ask from the Native Trust Such amount would represent seven years rent from the land it is proposed to benefit, even commencing from the Arahura crossing. With every wish to promote the matter for the sake of the tenants, I could not think of recommending so heavy an outlay. One-fourth of the estimated amount would be fully as much as I should be inclined to recommend. I have no record of any agreement between Mr. Sale and Jones and M'Glashan. The lessees asked £100 as compensation, if the road was carried through their leasehold.

Enclosure No. 4 in No. 5.
Copy of letter from Chairman County Council of Westland, Mr. Alexander Mackay.

Sir,—

I have the honour to acknowledge the receipt of your letter of 31st March, and your telegram of 5th April, 1870, informing me that the sum asked for towards the construction of a road at Arahura is much too large, and that you do not think of recommending so heavy an outlay to the General Government, but suggesting that one fourth, of the estimated cost would be as much as you could recommend.

In reply, I again strongly urge that an arrangement, as proposed in a Resolution passed by the County Council, on the 19th July, 1889, should receive your strongest recommendation to the General Government for adoption. This principle having been recognized as shown in a letter from you to the Mayor of Greymouth, dated 21st March, 1870, by which 10 per cent. of the Native Trust Fund is allowed to the Borough Council, towards the construction of protective works, streets, &c., &c., within the Borough.

A similar permanent arrangement would be beneficial to both parties. It would induce the Council to construct roads intersecting Maori property, thereby enhancing the value of the same, while it is otherwise in the interest of the Council to evade so doing, inasmuch as all works are chiefly defrayed out of the Land Fund, to which the Native lands up to the present time, have not contributed.

I would then point out to you that contributions from the Native lands to the Westland Trust Road Fund, as proposed, would be more locally distributed, and the Native Trust Fund would not be called upon for large sums at one time, which in the case of the Arahura is necessary, considering that the County has already provided a good road intersecting 5 miles of Native property, and which extends to about 5 miles beyond the commencing point of the present proposed road.

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.

Copy of Memorandum by Mr. Alexander Mackay, to the Hon. the Native Minister.

The County Government of Westland, in consequence of the roadway fronting Sections 38, 39, and 40, Native reserve, Arahura, having been washed away, propose now to make a road at a cost of £400, between Sections 34 and 38, and along the rear of the Native reserve, for the purpose of giving access to the Native reserve land abutting the proposed line of road, and also to Greak's and German Gullies, in aid Of which they ask from the Government a contribution from the Native Reserve Fund to the extent of one-half the estimated cost. Although the amount asked for appears out of proportion to the benefit likely to be conferred on the property by the proposed line of road, but seeing that the estate has derived considerable benefit from the trunk road already passing through the reserve, a work done entirely at the expense of the local Government, I beg to recommend, under the circumstances, that a contribution of £200 should be made to the County Government out of the fund in aid of the work, under certain conditions, viz:—

First. That the County Government pay the sum of £100 demanded by Mr. Cassius in compensation for the line recently constructed through his leasehold at the Arahura instead of looking to the Native Trust to meet it.

Second. That in the event of its being found necessary by the Government to construct other lines of road through the property, at some future date, the Trust shall not be called on to defray any proportion of the requisite expenditure, of whatever nature, neither for the expense of forming such lines, nor for compensation demanded by the occupant of any land through which the lines of road may pass.

Third. That the local Government take back the 560 acres included in the reserve for road purposes, less the quantity already absorbed by roads (170 acres) off the upper end of the reserve, so that the beneficiaries may enjoy the full benefit of the land to which they are entitled, without fear of encroachment for the future.

Mr. Hoos, the County Chairman, has had these conditions explained to him, and he makes no objection.

If the last condition is carried out, the Native Trust will have to purchase 390 acres to keep the reserve its present size, the price of which, at 10s. an acre, as arranged, (see memorandum attached), will necessitate an outlay of £195.

Enclosure No. 1 in No. 9.
Copy of Memorandum by Mr. James Mackay, Junr.

The question of the reserve at Arahura or Brunner River, was the great stumbling block in completing the purchase of the West Coast district. Natives wished for a reserve which would have contained about 8000 acres. I objected to this, but agreed that they could have 2000 acres and the whole of the river bed, and entered into a verbal agreement that they should be allowed to purchase at 10s. peracre, any land lying between the eastern extremity of the 2000 acres and Mount Tuhua.

In my report of the 21st September, 1861, it is thus alluded to:—

"It was specially stipulated that a very large reserve should be made at the River Arahura or Brunner, and that this reserve should be taken in a strip up each side of the river, with a view to giving them a right to its bed, from which is obtained the highly prized Pounamu, or greenstone, which gives the name of Wahi Pounamu (place of greenstone) to the middle Island."

On the map furnished to the Natives on 21st May, 1860. the following memorandum was made:—

"If the land indicated on this map does not extend to the mountain (Mount Tuhua) it had better be surveyed to there, as the Natives are allowed to purchase it."

The maps furnished are merely sketches; where practicable, one or more boundaries of each reserve were roughly measured. In the case of the Arahura reserve the beach frontage alone was marked off, but even this was in excess of my instructions which were:—

"All these reserves shall be defined with as much precision as may be found practicable without actual survey and cutting the lines on the ground."

I have previously, in transmitting a copy of the sketch plan of the Arahura reserve, informed the Provincial Government of Canterbury, that no accurate survey had been made, and that certain marks had been made showing the boundaries of some of the reserves, and that, if, on actual survey, the land so defined was found to be either in excess of, or less than the approximate area given by me, if possible, the first arrangement should be adhered to.

I think, as a vast territory was acquired by the Government for a very small sum of money, and it has since become very valuable, and the reserves, though much enhanced in value, are very small in comparison with the whole block ceded, that the Provincial Government would be justified in giving to the Natives the land at Arahura which forms the subject of Mr. Bealey's letter.