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Whakarewarewa School Reserve, Motueka (Report of Mr. Commissioner Mackay upon the).

[Report of Mr. Commissioner Mackay upon the Whakarewarewa School Reserve, Motueka]

Memorandumre the Petition of Tapata Harepeka and Others, for the Restoration of certain Lands at Motueka granted to the Bishop of New Zealand as an Endowment for an Industrial School out of Reserves set apart for their Use and Occupation.

The history of the early formation of the Nelson settlement being inseparably connected with the subject-matter of the petition, it would be difficult to explain clearly the whole of the circumstances which led to the setting-apart of the lands which are now sought to be recovered by the petitioners without briefly referring to the scheme under which the reserves at Motueka were set apart.

One of the principal features in the formation of the New Zealand Company's settlements was the scheme of Native reserves, and in all the early land-transactions with the Natives the deeds contained an express covenant that a portion of the land ceded, equal to one-tenth, should be reserved by the Company and held in trust for the future benefit of the vendors.

In fulfilment of the above engagement the original quantity set aside by the Company in the Nelson settlement as Native reserves was 20,100 acres—viz., 100 town acres, 100 suburban sections of 50 acres each, and 100 rural sections of 150 acres each, out of which only 5,057 acres have been retained.

In addition to the tenths it was also agreed between the Government and the New Zealand Company that the Natives were to have occupation land allowed them as well, as it was not intended that they should take possession of the tenths, but that these lands should be held and managed for the benefit of the vendors, and the proceeds expended for their moral and social advancement.

The mode of acquiring the Native reserve tenths was determined by lot in the same manner that orders of choice were obtained by European purchasers.

The tenths, town and suburban, were selected in the Nelson settlement by the Police Magistrate, Mr. H.A. Thompson, in 1842.

In fulfilment of the arrangement made between Captain Wakefield and the Natives shortly after the arrival of the preliminary expedition at Nelson, that they should retain a considerable portion of the Big Wood at Motueka, then in cultivation by them, Mr. Thompson was compelled, in consequence of their cultivations being included in the surveyed sections, to select these lands as Native reserves under the New Zealand Company's scheme. This led to the following fifty-acre suburban sections being chosen : viz., Nos. 157, 159, 160, 161, 183, and 187—in all, 300 acres.

In 1844 Mr. Commissioner Spain, who had been sent out from England by the Imperial Government clothed with plenary powers to investigate and determine the New Zealand Company's claims to land in New Zealand, arrived in Nelson for the purpose of holding an inquiry into the Company's claims in that district. On visiting Motueka he found the Natives, besides being in occupation of the aforesaid sections, were also cultivating lands that had been chosen by the settlers. It became necessary, therefore, in order to enable the Company to keep faith with its purchasers, to exchange these sections for lands selected as Native reserves tenths other parts of district.

This resulted in seven of the original fifty-acre sections being exchanged for seven others of an equivalent area in the Big Wood. In addition to the sections already in the occupation of the Natives, Commissioner Spain awarded them three more, bringing the number up to sixteen, and the quantity of land to 800 acres.

In July and August, 1853, two grants, comprising in all 1,078 acres and 5 perches, were issued in favour of the Bishop of New Zealand as an endowment for a school for religious, industrial, and English education of children of both races, and of children of other poor and destitute persons being inhabitants of islands in the Pacific Ocean.

Of the quantity of land included in the grant, 918 acres and 5 perches was appropriated out of the Native Trust Estate, and 160 acres belonged to Crown lands. The proportion taken page 2out of the Trust Estate included some of the best lands belonging to the property, but the Crown land was utterly valueless, and has remained so to the present day.

The 918 acres appropriated as aforesaid included 350 acres of the quantity allotted formerly by Commissioner Spain for the Natives, and to the dissatisfaction that has prevailed in consequence of this action may be attributed the want of success that has attended the school since its outset.

On the allocation of the Native reserves in Motueka becoming known, the Nelson Provincial Council passed a resolution condemning the dedication of these lands for the purposes described in the grant as being a violation of the contract in virtue of which the Nelson settlement was founded. A memorial was also despatched to the Secretary of State for the Colonies setting forth the reasons why the grant to the Bishop should be annulled.

In reply to the protest made by the Council, permission was granted to try the validity of the grants by scire facias, but after duly considering the matter, although still holding to the opinion formerly expressed, it was decided that it would be impolitic to make any attempt to disturb the grants, as other questions of title were inwrapt which it would be inexpedient to raise.

The question of the Motueka endowment was subsequently brought before Parliament in 1867, on a motion made by Mr. C. Parker, M.H.R. for Motueka. Owing to the representations then made, and the general dissatisfaction that prevailed regarding the administration of the whole of the educational Trusts throughout the colony, a Royal Commission was appointed in 1869 to inquire into the matter.

The Commissioners, in reporting on the subject, stated, "In many cases the grants of the endowments themselves seem to be of questionable legality, and in one instance, at least, the lands have been diverted from the Trusts for which they were originally granted to objects of an entirely different character…. The Commissioners therefore, with a view to the maintenance of the rights of the persons beneficially interested in these grants, and in order to secure to them the advantages contemplated when they were made, recommend that an Act should be introduced into the Legislature empowering the Government to appoint an Official Trustee or Trustees, in whom all these estates should be vested, upon precisely the same Trusts (wherever these latter should not be considered positively illegal) as those for which they were originally given."

With reference to the grants now under review, the Commissioners make the following observations:—

"These grants, which have caused much local dissatisfaction, appear to have conveyed an amount of land (consisting of reserves originally made for the benefit of the whole of the Natives residing around the settlement of Nelson) disproportionate to the relative number of Natives of that denomination in the settlement…. The attempts to establish a school there (Motueka) must be characterized as failures."

No action was taken to carry out the recommendation made by the Commissioners.

In 1879 a Commission was appointed under letters patent to inquire into and report upon the University of New Zealand and other educational institutions. Amongst other institutions inquired into was the Motueka School endowment, and the evidence taken will be found at pages 137 to 139, 157 to 161, and 162 to 166 appended to the Commissioners' report. The Commissioners did not append any remarks to their report touching the condition of the endowments they took evidence on, consequently it is impossible to determine their joint opinion on the subject.

Touching the allegations contained in the petition, that the Natives gave the land on the understanding that it would be returned in the event of the school being closed, it will probably be found impossible to furnish any tangible evidence in proof or disproof of the statement; but it cannot be disguised that the school has been unsuccessful from the outset, and that the conditions of the grants have been infringed on several occasions.

In the first place, the school was in abeyance for about three years, between 1857 and 1860; it was then closed again for four years, between March, 1864, and May, 1868, in consequence of the scholars having decamped, owing to their unwillingness to work, as well as their distaste to be under restraint. It was reopened in May, 1868, with fair success under the Rev. Mr. Ronaldson, and remained open under his charge, and subsequently under Mr. Joseph Baker's, in an irregular manner for about thirteen years. Mr. Baker was appointed in May, 1872. The school has been permanently closed since May, 1881, and it would be fruitless making any further attempt to open it, as there are no children to educate.

The want of success that has attended the school throughout is entirely owing to local circumstances—viz., the annoyance evoked in the minds of the Natives at their lands having been appropriated for the purpose. This feeling was a continual source of irritation, and deterred the attendance of children in the locality, while the local jealousies prevented parents at a distance from utilising the establishment. The Motueka School, when first established under the Rev. Mr. Tudor, before the endowment was made, was well attended; but directly the land was taken, and the Natives had to remove off the portions cultivated by them, a feeling of dissatisfaction at once commenced, and has continued more or less ever since.

The appropriation of this land has also operated detrimentally to the interests of the Natives in other respects, as the inability of the institution to provide for all the school requirements needed necessitated other arrangements being made to bring education within reach of other localities, thereby causing an extra charge on the Native Reserve Fund accruing from other lands which should not have been hampered with claims for educational purposes, considering the valuable property that had been allocated in that behalf.

It will probably be admitted that the following reasons furnish a good and sufficient cause why the grants of the aforesaid lands should be annulled, and that legislative action should now be sought to vest the land in the Public Trustee:—
(1.)There is little doubt that the grants to the Bishop of New Zealand are both illegal and inequitable. Illegal, because the lands appropriated have been dedicated to uses entirely at page 3variance with the intention for which they were set apart—viz., for the special benefit of certain Natives; inequitable, because lands that were set apart in fulfilment of a special engagement with the Natives, and, in fact formed part of the purchase-money for the cession of their territory to the New Zealand Company, have been made available for the education of European children, and children of other poor and destitute persons of islands in the Pacific Oceau.
(2.)Because the terms of the grant have not been maintained—viz., that religious education, industrial training, and instruction in the English language should be constantly taught—the school having been frequently closed for three and four years at a time, and is now permanently discontinued owing to there being no further use for it.

Although it is impossible to gauge accurately the benefits that may have accrued to the Natives through the dedication of over nine hundred acres of the primest part of their estate as an endowment for school purposes, it is quite possible to approximate the total income that would otherwise have flowed into the Trust funds for their behoof in other ways had this allocation not been made, and the amount would be under-estimated at £8,000.

With a view to place the Committee in possession of further information on the question, I furnish herewith the under-mentioned papers, &c., viz.: (1.) Papers containing an account of the proceedings of the Nelson Provincial Council in re the grant to the Bishop of New Zealand of certain lands at Motueka. (2.) Papers containing the evidence taken before the Royal Commission in 1870 on the same subject. (3.) Book containing evidence taken before the Royal Commission in 1879. (4.) Book containing, inter alia, reports on the condition of the Motueka School in 1856, 1876-77. (5.) Book containing memorandum on New Zealand Company's tenths. (6.) Three plans of the reserves in Motueka.

A. Mackay.

9th July, 1883.

Memorandumre clause 28A"Special Powers and Contracts Act, 1886," introduced for the purpose of enabling the Governor to declare, by Order in Council, that the Grants issued respectively on the 25th July and 4th August, 1853, to the Bishop of New Zealand, of certain Native Reserves in the Motueka District, should be cancelled, and the Lands vested in the Public Trustee as Native Reserves for the benefit of the Natives for whom such Reserves were originally made, or their Descendants.

The following objections were made against the aforesaid clause in the Waste Lands Committee by Mr. Hursthouse, M.H.R., on behalf of the Bishop of Nelson : (1.) That the Bishop had not had an opportunity of being heard on the subject. (2.) That the Act in question was not a proper place for a clause of the kind to be inserted. (3.) That it was inexpedient and impolitic to take steps to cancel the grant, because there were other lands held in a similar manner, to wit, an endowment at Wanganui and at Te Aute in Hawke's Bay, as well as at other places in the colony, that might possibly be jeopardized by such action. (4.) That the Natives were deriving an interest benefit from the endowment, and had consented originally to the land being appropriated. (5.) That the land included in the endowment was occupied by tenants who were entitled to special consideration.

The Native Minister stated that, after hearing Mr. Hursthouse's statement, he would not press for the retention of the clause. It was accordingly struck out.

In reply to the objections raised by Mr. Hursthouse, the following particulars are submitted in opposition thereto:—

In the session of 1883 a petition was presented to Parliament on behalf of certain Natives of Motueka to restore the land to them; but its consideration was postponed at the request of Mr. Hursthouse, owing to the Bishop of Nelson being absent in England.

It came up again in the session of 1884, and after an exhaustive inquiry the Native Affairs Committee reported as follows : "The Committee is of opinion that the condition of the Trust has not been fulfilled, and that steps should be taken by the Government, either by action in the Supreme Court or by legislation, to restore the land in question to the condition of an ordinary reserve under the management of the Public Trustee. As regards that part of the grant made out of Crown lands, the Committee consider it should revert to the Crown.—J. B. B. Bradshaw, Chairman. 30th October, 1884."

(a.)The Bishop of Nelson was notified that the Committee was prepared to hear him on the subject of the petition, but for some reason be did not attend. It is submitted, therefore, that it is too late now to urge that as a plea for delay.
(b.)With reference to the objection raised against the insertion of the clause to meet the case in the Special Powers and Contracts Act, it is possible, even if a special Act had been introduced for the purpose, that exception would have been taken to it by those who held the property on some other plea, although they must be fully convinced that the retention of the estate under the circumstances is altogether unjustifiable.
(c.)That it is inexpedient and impolitic to disturb the grant. This is one of those remarks that are always advanced whenever an attempt is made to remedy a wrong of the kind, that such a proposal involves a dangerous principle, and, if sanctioned, would tend to destroy the security of property held under Crown grant.

Wanganui Endowment.

As regards the endowment at Wanganui being held on similar terms, the only resemblance is that the conditions of the grants are somewhat the same, but the principle involved is very different. The land included in the Wanganui endowment was not Native reserve land, nor had the Natives any interest in it at the time. The endowment was made out of land that originally formed part of the Town of Wanganui or Petre, but, owing to the requirements of the place not needing a town site of the dimensions that were first laid off, it was reduced in size about 1849; and at the time the grant was made, in 1852, the land included in it was in the position of suburban land, but the page 4main point to be observed in connection with the case is that the land in question, at the time it was set apart, was not the property of the Natives, but belonged to the Crown, and it was competent for the Governor, if he had the power to dedicate it, to set it apart for the purpose set forth in the grant, i.e., for the use and towards the maintenance of a school for the education of children of poor and destitute persons being inhabitants of islands in the Pacific Ocean, &c.

The dedication of the aforesaid land to this purpose did not contravene any Trust, or deprive any person of their property, as was done in the case of the Motueka grant, as the land in question was lying waste at the time, and had not been appropriated to any other use.

Te Aute Endowment.

With reference to the land comprised in the grant of Te Aute, this is also on an entirely different footing to the estates included in the Motueka grant.

The educational endowment at Te Aute is comprised in three grants of contiguous properties, of which two were ceded by the Maoris to the Crown under the provisions of "The Native Reserves Act, 1856," to enable a grant to be issued, and the third is a free gift of Crown land promised by Sir George Grey. These grants were made in favour of the Bishop of New Zealand, who subsequently conveyed them to trustees appointed by the General Synod.

The trust upon which the land was given by the Maoris differs from that affecting the free gift from the Crown.

The grants of the lands given by the Maoris comprise the blocks containing respectively 1,745 and 1,408 acres. One is dated the 10th June, 1857, and vests the land in the Bishop of New Zealand upon trust as an endowment for a school to be maintained at Te Aute for the benefit of the aboriginal inhabitants of New Zealand. The other also bears the same date, and is upon the same trust. The one comprising the lands given by the Government—viz., 4,244 acres—is dated the 7th July, 1857, and is vested upon trust as an endowment for a school to be maintained in the District of Ahuriri, for the education of children of both races in New Zealand.

It will be seen that the two trusts are quite distinct, and, in the case of the 3,153 acres of Maori land, that the Natives gave it voluntarily for the purpose.

The matter as regards the endowments at Wanganui and Te Aute stands thus: The one at Wanganui comprises Crown land entirely, and the one at Te Aute consists partly of Native and partly of Crown lands, but the Native land was voluntarily ceded for the purpose.

It is obvious, therefore, that neither of the cases quoted by Mr. Hursthouse are on all-fours with the Motueka endowment, for, with the exception of a small parcel containing 160 acres of indifferent Crown land, the rest of the estate there consists of land that was specially allotted to the Natives by Commissioner Spain in 1844 for their use and occupation, and subsequently appropriated as an endowment in 1853 for the education "of children of our subjects of all races, and of other poor and destitute persons, being inhabitants of islands in the Pacific Ocean."

It will be observed that the condition of the grant was in contravention of the original intention for which the lands were set apart.

(d.) It is alleged that the Natives sanctioned the allocation of the aforesaid lands; but this they deny, and I am disposed to believe them, as their attitude throughout towards the school, on their becoming aware that their land had been appropriated to the purpose, entirely bears out the assertion that they were not parties to the transaction—in fact, some of the land was in their occupation at the time, and great dissatisfaction was manifested at their having to remove.

The draft deed submitted to the Secretary of State for the Colonies by Sir George Grey in 1851, at the time the proposal to set apart land for educational endowments for the Natives was under consideration, contains the words "has by a deed from the Natives been ceded for the support of the said school;" but the grant of the Motueka endowment contains no such words: and the inference is that the consent of the Natives was not sought, but that the land was set apart without their concurrence, and, as the evidence that was taken by the Commission in 1869-70 also tends to show, without the knowledge of any one else.

Major Richmond, who was then conservator of the estate, stated to the Superintendent of Nelson that the first he knew of it was the receipt by him of the grant; and the Provincial Government, on hearing of the appropriation, immediately protested against it, leave being subsequently given by the Imperial Government to try the validity of the grant: but no action was taken by the authorities.

(e.) The interests of the tenants will not be impaired by the change; but it is easy to guard them against any probability of such a result ensuing by inserting suitable words in the clause to that effect.

The conditions of the grant have been violated over and over again. The school has been permanently closed since May, 1881, and there is no likelihood of it being again reopened The funds are now being spent entirely at variance with the intention for which the endowment was made, being disbursed by the Bishop of Nelson to provide education for the children of destitute persons on application being made to him.

This is the action that it is said is now being taken in regard to the expenditure of the funds; but, as education is free to all, it is difficult to perceive on what grounds this line of conduct can be justified, apart from the question of the propriety of abandoning the conditions of the grant that the proceeds of the estate are to be expended for the maintenance of a school at Motueka for certain purposes.

If legislative permission cannot be obtained for setting aside the grant, then the Natives should be permitted to test its validity in the Supreme Court, although it seems rather hard that they should be put to the expense of recovering their estate in this manner.

A. Mackay.

6th August, 1886.
page 5

Memorandum relative to the Motueka School Endowment.

Government Buildings, Wellington, 1st November, 1887.

I Have very little more to add to the information already furnished in my memoranda of the 9th July, 1883, and the 6th August, 1886. The position of the matter is the same now as it was then.

With reference to the telegram of the Bishop of Nelson* included in above extract, "the destitute children" alluded to are the children of Europeans; but the fact cannot be set aside that the condition of the grant—i.e., that a "school should be maintained at Motueka "—has been violated over and over again, and for a considerable time; consequently anything that may now be attempted cannot retrieve the past or operate as a waiver of the breach of covenant.

With regard to the statement made by the Bishop of Nelson that he is prepared to maintain that the Maoris agreed to give the land for the purpose, his Lordship proposes to undertake a task that others who are more familiar than he can be with the early circumstances connected with the setting-apart of these lands are not prepared to do; but, even supposing this position was established, it is a matter of little consequence, as the Maoris had no right of disposal over these lands, the Government being virtually the trustee in accordance with the New Zealand Company's scheme.

In connection with the matter there is another point on which a doubt exists, and that is, whether the Bishop of Nelson has any legal status in regard to the lands comprised in the endowment. The land was originally granted to the Bishop of New Zealand and his successors; but, as his Lordship was appointed under Letters Patent, which he surrendered, he could have no legal successors, as the term "successors" in the grant meant successors under the Patent.

An Act was passed in 1858, intituled "The Bishop of New Zealand Trusts Act, 1858," authorising the Bishop to convey lands vested in him for religious, educational, charitable, or other purposes to trustees nominated by the General Synod; but it has not been shown that action of this kind was taken in the case of the Motueka lands, and the assumption is that no steps were taken, as Bishop Selwyn, who was one of the trustees originally appointed by the Governor to manage these lands, was fully aware of the objections raised against the Motueka grant, as will be seen by the subjoined letter written by his Lordship relative to the action taken by the Provincial Government of Nelson to obtain the necessary legal facilities to set the grant aside.

I pointed out at the beginning of this memorandum that the position of the matter is not altered, anything that the Bishop of Nelson may now be doing notwithstanding.

In view of all the circumstances, I would beg to submit that immediate measures be taken to have the grants set aside, either by the aid of the Legislature or else by permitting the Maoris to have recourse to the Supreme Court.

The following reasons appear to form a sufficient cause why action should be taken in the matter:—
(1.)The grants are both illegal and inequitable: illegal, irrespective of the position of trustee occupied at the time by the Government in respect of these lands, because the lands so appropriated have been applied to uses entirely at variance with the intention for which they were originally set apart—viz., for the special benefit of certain Natives; inequitable, because lands that were set apart in fulfilment of a special engagement with the Natives have been made available for the education of European children and children of other poor and destitute persons of islands in the Pacific Ocean.
(2.)Because the terms of the grant-that religious education, industrial training, and instruction in the English language should be constantly taught—have not been maintained, the school having been frequently closed. The school was closed in the first place from March, 1864 to May, 1868. It was reopened again then, and remained so, with varied success, for about thirteen years, and was again permanently closed in May, 1881, in which condition it has remained ever since. An attempt has been made recently to give matters an appearance of activity by putting in operation the objectionable conditions of the grant by utilising the funds of the estate in educating destitute children of European parents—a very insufficient reason for leaving the matter in its present unsatisfactory condition.

A. Mackay.

The Under-Secretary, Native Department, Wellington.

Copy of the Bishop of New Zealand's Letter relating to the Motueka Grants.

7, Old Square, Lincoln's Inn, 6th March, 1855.

Sir,

In answer to the inquiries contained in your letter of the 20th February, 1855, I beg to state that the grants in question were executed by the late Governor without any previous application on my part. I have not taken any steps in consequence of these grants, excepting such as appeared to be necessary for the conservation of the property—viz., executing a power of attorney to enable competent persons in the settlement of Nelson to act for me in the management of these estates; but I have done nothing which would amount to an appropriation of the land, and I have never sold or agreed to sell any part of it, and have never received anything either on account of rents or otherwise.

It now appears that there are serious questions as to the trusts to which these lands and their rents are properly applicable, and as to the power of the Government to appoint trustees or to delegate the trusts, if any, reposed in itself, and I do not feel it within my province to decide any such question, but shall be ready to act with respect to these lands in any manner which may be directed by any Court of competent jurisdiction.

G. A. N. Zealand.

H. Merivale, Esq. page 6

Note.—The persons appointed by the Bishop to act as his attorneys were Major Richmond Dr Greenwood and Archdeacon Paul; but no steps were taken to alter the terms of the leases previously issued by the Native Reserves Trustee, until the arrival of the first Bishop of Nelson, Dr. Hobhouse, when new leases were granted for twenty-one years.—A. Mackay.

Telegram from the Bishop of Nelson to the Premier.

Copy of telegram read to the House (see Hansard, 6th May, 1887, p. 121): "The Trust has received destitute children according to the grant, and when the repairs to the building now in hand are finished, by the funds which accumulated during the last few years, will be able to receive more children. It is, and has been, open to Maoris. I am prepared to maintain that the Maoris agreed to give the land for the purpose. It stands on the same basis as numbers of other trusts given in the same way.—Bishop of Nelson."

* Hansard,6th May, 1887, p. 121. (Copy of telegram attached.)