Middle Island Native Land Question (Report on.), By Mr. Commissioner Mackay
I propose to deal with this block separately, as the circumstances connected with its purchase stand alone. On the 31st July, 1844, the New Zealand Company—the Crown's right of pre-emption having been previously waived over 150,000 acres in the Middle Island by Governor Fitzroy in February of the same year, to enable the company to found the New Edinburgh Settlement— acquired, through the intervention of an officer appointed by the Colonial Government, a tract of country known as the Otakou Block, comprising 400,000 acres, for £2,400, as a site for the purpose, out of which the company engaged to select the 150,000 acres over which the right of pre-emption had been waived, and to re-convey the remainder to the Crown.
Three blocks of land were excepted out of the purchase by the Natives, namely, at Otago Heads, Taieri, and Te Karoro, containing in the aggregate land to the extent of 9,615 acres. The actual number of Natives resident in the block at the time does not appear to have been accurately ascertained, but according to an estimate made during the early part of the same year the population numbered about two hundred.
At the time the land was sold the tract of country between Otakou and the Taieri, according to Mr. Symonds, the officer appointed by the Government to effect the purchase from the Natives, was jointly claimed by the Native chiefs Tuhawaiki, Taiaroa, and Karetai, on behalf of their several families and dependants; and that the Taieri district to Tokota (the Nuggets) belonged to Tuhawaiki and his immediate connections. Independent of the land excepted from sale by the Natives, it was evidently intended at the time to select special reserves, as contemplated in the scheme of the other New Zealand Company's settlements, on which point Mr. Symonds writes as follows in his report on the purchase, dated the 2nd September, 1844: "I pursued this course as regard Native reserves from the firm conviction that the system heretofore adopted in the other purchases of largo tracts was beyond the comprehension of the aborigines, and at the suggestion of Colonel Wakefield I left the further choice of reserves, namely, the tenth part of all land sold by the New Zealand Company, to be determined by His Excellency the Governor, without making any express stipulation with the Natives on the subject.
According to the agreement entered into between the New Zealand Company and the Otago Association in 1847 the New Edinburgh settlement was to comprise 144,600 acres, a tenth of which would represent 14,460 acres. The terms of purchase, however, between the company and the association precluded the possibility of any part of the aforesaid block being set apart as Native reserves; but the Natives nevertheless were to have land reserved for them within the block to the extent named; and ample evidence can be obtained by a perusal of the parliamentary papers and New Zealand Company's reports of that date of the intention to make such reserves, as the following extracts will show:—
Colonel Wakefield, in his report to the secretary of the Company on the acquisition of the Otakou Block, under date the 31st August, 1844, alludes to the matter in this wise : " Two other points there are of special application to the Governor: the one, respecting the future disposal of the residue of the block beyond the 150,000 acres to be selected by the Company; the other, as to the special Native reserves, as in the other settlements, not contemplated in the company's New Edinburgh scheme, which cannot be made till the surveys are completed and selections made "
Major Richmond, the Superintendent of New Munster, in his letter of the 23rd May, 1844 to Governor Fitzroy, reporting on Mr. Symonds's proceedings in relation to the Otakou Purchase suggests that when the choice of sections is being made it will be necessary to have an officer on the spot to select reserves for the Government and Natives, and states his intention to appoint Mr Symonds (unless previously instructed to the contrary) to make the selection. The matter is again' alluded to by him in his letter to Governor Fitzroy, dated the 12th June, 1844. After detailing the steps taken in regard to Government reserves, he alludes in the following manner to the action he proposes to take in setting apart the Native reserves. "By the sixth paragraph of the prospectus for the New Edinburgh settlement I find that the provision hitherto made for the Natives by the directors of the New Zealand Company is left to the local Government. I shall therefore demand on their- behalf one-tenth of each description of allotment, namely, town, suburban and rural, page 15and arrange with the principal agent of the Company for the new settlement on the mode to be adopted for their selection, should I not receive your Excellency's instructions on this subject previous to the arrival of the latter with the emigrants."
Mr. Harrington, the secretary to the company, in communicating to the principal agent the amended terms of purchase for the Otago Association Block, also distinctly admits on the part of the Company the right of the local Government to make reserves for the Natives in that block, in addition to those lands which, as they were merely excluded from the purchase, were scarcely to be considered Native reserves under the New Zealand Company's scheme.
The setting-apart of Native reserves formed part of the terms embodied in the agreement of the 18th November, 1840, on which a charter of incorporation would be granted to the New Zealand Company, and, on these terms being accepted, on the 12th February, 1841, a charter was granted. The 13th clause of the aforesaid agreement contains the following provision relative to Native reserves : " It being also understood that the company have entered into engagements for the reservation of certain lands for the benefit of the Natives, it is agreed that, in respect of all the lands so to be granted to the company as aforesaid, reservations of such land shall be made for the benefit of the Natives, by Her Majesty's Government, in fulfilment of and according to the tenor of such stipulations, the Government reserving to themselves in respect of all other lands to make such arrangements as to them shall seem just and expedient for the benefit of the Natives." The stipulation alluded to was the reservation of one-tenth of the land acquired from the Natives in any agreement entered into. In April, 1846, an unconditional grant was executed to the New Zealand Company of the entire block of 400,000 acres, excluding the land reserved by the Natives.
On the 5th July, 1850, the New Zealand Company surrendered their charter, and the whole of the lands in their possession, subject to existing contracts became demesne lands of the Crown by virtue of the Act 10th and 11th Vict., c. 112, and subject to the instructions of 1846 respecting Crown land within the colony, as amended by the additional instructions of the 12th August, 1850.
Owing to the failure of the Otago Association to sell and settle the 144,600 acres contained in the agreement of 1847 with the New Zealand Company, that body ceased on the 23rd November, 1852, to have control over this land. Notwithstanding the inability of the association to fulfil the engagement with the company, the Imperial Government deemed it advisable that the residue of the land contained in the block of 144,600 acres should continue to be administered in general conformity with the terms hitherto subsisting until the General Assembly should otherwise determine; and instructions were issued to the Commissioner of Crown Lands to administer the waste lands in conformity with the aforesaid directions as regards the unsold portion of the 144,600 acres, and the remainder of the Otago block under the Government regulations of the 4th March, 1853.
Although it may be urged that the Crown had parted with its control over the 400,000 acres comprised in the Otago Block on the issue to the New Zealand Company of the grant dated the 13th April, 1846, the Company's lands reverted to the Crown on the surrender of their charter in July, 1850, subject to existing contracts, and the reservation of the tenths in the residue of the block outside the part held bv the association could have been effectuated after that date.
No doubt can exist that the New Zealand Company fully admitted the right of the Natives to have a tenth of the land set apart for them in the Otakou Block in the same manner as was carried out in their other settlements; but the reservation and selection of these lands were left to the Colonial Government, but from some unexplained cause Governor Fitzroy omitted to give the necessary directions to have the lands selected, notwithstanding the desirability of doing so was brought before his notice more than once by the Superintendent of New Munster, although it was one of the conditions laid down, upon which the Crown's right of pre-emption was to be waived, "that all existing arrangements by the Government with respect to the New Zealand Company's settlements should be strictly observed."
It is highly inequitable, however, that the Natives interested in the question should be compelled to suffer for an omission of the Colonial Government to set apart the proportion of the Otakou Block it was generally admitted they were entitled to; and the desirability will no doubt be now seen that immediate action should be taken to remedy, as far as possible, the loss they have sustained in consequence. As a matter of fact, no reserves have been made for them in the Otakou Block, as the lands they occupy are portions they excluded from sale, and form part of their original estate. This position of the matter was admitted by the New Zealand Company, through their secretary, Mr. Harrington, when acknowledging the right of the Government to make reserves for the Natives within the block in accordance with the Company's scheme.
I have not had an opportunity of consulting the Natives specially interested in the aforesaid block as to whether they are willing to accept a grant of land as compensation for the non-fulfilment of the intention to set apart the tenths, and consequently am unable to make any recommendation on their behalf. The setting-apart of the tenths is the only condition left unfulfilled in their case. No promises in regard to hospitals or schools were made in connection with the cession of the land. If the obligations respecting the tenths is admitted, the least the vendors or their representatives are entitled to is the minimum quantity of 14,460 acres that should have been originally set apart, together with a fair percentage addition as compensation for the number of years they have been deprived of the benefits that would have accrued from these lands had the intention been effectuated at the outset.
All this is respectfully presented to your Excellency.
(L.S.) A. Mackay.
Signed and sealed this 5th day of May, 1887.