The Taranaki Question
I. Native Tenure of Land
I. Native Tenure of Land.
1. The land occupied by a Native Community is the property of the whole Community. Any member of the Community may cultivate any portion of the waste land of the Community. By so doing he acquires a right over that particular piece of land, and the right so acquired will pass to his children and to his descendants. If he have no descendants, the land may then be cultivated by others of the Community, as agreed upon amongst themselves.page 2
Thus the whole Community has a right like what we should call a reversionary right over every part of the land of the Community.
The word “Community” is used here rather than the more common terms “tribe,” “subtribe,” or “family.” for this reason,—Each of the original tribes (iwi) of the Maories has in course of time broken up into a great number of sub-tribes or families (hapu), which have from time to time planted themselves in separate villages on different parts of the common territory; each family retaining the name of its ancestor or founder. Such sub-tribes are exceedingly numerous. Sometimes it has happened that intermarriages for many generations between such subtribes, have so blended them together as to render it impossible to draw any distinction between them for any practical purpose. Owing to this process of fusion and intermixture, there may be a difficulty sometimes in determining the exact limits of the Community. It may be the whole tribe, it may be less than the whole tribe, yet larger than any one sub-tribe or family.
However that may be, every Cultivator is a member of some Community or Society, and not free to deal with his land independently of that Community or Society.
2. The Chief naturally represents and defends the rights of his people. He has his own personal interest like the rest. He is also especially charged page 3 with the protection of their honour and interests; and would lose all his influence if he did not assert their rights manfully.
It is a common thing for the head man in a Community to have but little claim upon a spot belonging to the Community, and yet to claim great powers in the disposal of it. In these matters the tribe generally support what he says. Still, as a general rule, he makes it his business to confer with the lesser chiefs and the whole tribe, and does not venture to act without them.
In some very rare instances, a Chief has disposed of a piece of the land on his own authority without first consulting the people and his act has been subsequently recognised. In cases of this kind, much depends on the respect in which the Chief is held by his people, and on a variety of circumstances affecting the internal politics of the Community.
To make a sale thoroughly regular and valid, both Chief and people should consent.
In some cases the Chiefship is divided: where, for example, a younger brother has by superior ability or bravery raised himself to the level of the elder or even above him. So that in each particular purchase, there is a necessity for carefully ascertaining what is the Community, and who the Chief or Chiefs, whose consent is needed to make the Sale thoroughly valid and unquestionable.
3. In old times land was sometimes ceded by one page 4 Tribe to another as a payment for assistance rendered in war. Also, land was occasionally transferred as payment for losses in war. Where a Chief of superior rank had been slain on one side, land was yielded up by the other, in order to end the war on fair terms.
This was the case at Kororareka in the year 1837, when the Nga puhi, from Whangaroa, Matauri, and the Bay of Islands, made an attack on Kawiti and Pomare at Kororareka. Hengi, a superior Chief, fell; and though the assailants were repulsed, Kororareka, together with a large portion of land as far as Cape Brett, was ceded to them.
Even in our times, lands have changed owners on account of a murder or life otherwise lost.
4. The holdings of individual cultivators are their own as against other individuals of the Community. No other individual, not even the Chief, can lawfully occupy or use any part of such holding without the permission of the owner. But they are not their own as against the Community. If it is said of a piece of land “the land belongs to Paora,” these words are not understood by a Maori to mean that the person named is the absolute owner, exclusive of the general right of the Society of which he is a member.
So entirely does a Maori identify himself with his Tribe, that he speaks of their doings in past times as his own individually. We speak of our victories of page 5 Blenheim and Waterloo. A Maori, pointing to the spot where his Tribe gained some great victory, long ago, will say triumphantly “Naku i patu,” “It. was I that smote them.”
5. It is established by a singular concurrence of the best evidence that the rules above stated were generally accepted and acted upon by the Natives, in respect of all the lands which a Tribe inherited from its forefathers. Of course many cases must have existed in which might overcame right. Still the true rule is known and understood: the Natives have no difficulty in distinguishing between the cases in which the land passed according to their custom, and those in which it was taken by mere force.
In the year 1856 a Board was appointed by the present Governor to enquire into, and report upon, the state of Native Affairs. The Board “considered it necessary to avail itself of the best information which could be obtained from persons acquainted with the Natives,” and with that view examined many witnesses. Amongst other subjects of enquiry, they reported on “Claims of individual Natives to Land” in the following words:—
“Each Native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he, or his parents, may have regularly used for cultivations, for dwellings, for gathering edible berries, for snaring birds and rats, or as pig-runs.page 6
“This individual claim does not amount to a right of disposal to Europeans as a general rule, but instances have occurred in the Ngati whatua tribe in the vicinity of Auckland where Natives have sold land to Europeans under the waiver of the Crown's right of Pre-emption, and since that time, to the Government itself. In all of which cases, no after claims have been raised by other members of the tribe; but this being a matter of arrangement and mutual concession of the members of the tribe, called forth by the peculiar circumstances of the case, does not apply to other tribes not yet brought under its influence.
“Generally there is no such thing as an individual claim, clear and independent of the tribal right.
“The Chiefs exercise an influence in the disposal of the land, but have only an individual claim like the rest of the people to particular portions.”
Among the questions put by the Board to the witnesses was the following:—
“Has a Native a strictly individual right to any particular portion of land, independent and clear of the Tribal right over it?
This question was answered in the negative by twenty-seven witnesses, including Mr Commissioner McLean, and by two only in the affirmative.
6. This state of things is the necessary consequence of the existence of Clans or Tribes. The Clansmen are equally free and equally descended page 7 from the great Ancestor, the first planter or the conqueror of the district. They all claim an interest and a voice in every matter which concerns the whole Tribe; and especially in a matter which touches them all so nearly.
As to the disposal of land, the Natives are fond of arguing thus: “A man's land is not like his cow or his pig. That he reared himself; but the land comes to all from one Ancestor.”
7. Englishmen seem often to find a difficulty in apprehending such a condition of things. Yet it is in fact the natural and normal condition of a primitive Society. It may be worth while to turn aside for a moment to shew this.
“However familiar the appropriation of land may appear, the history of mankind affords sufficient proof of the slow development of individual possession, and the difficulty of arriving at the principles upon which such an exclusive claim is founded. The first and most obvious right accrues to the people, or nation, as is the case with the Aborigines of North America.— “In ancient Germany, no one man was enabled to acquire any permanent property in any distinct portion or parcel of the soil.”—(Sir F. Palgrave. English Commonwealth, 1. 71.)
8. In Ireland a few Centuries ago, the tribal page 8 right was even more strongly recognised than it is now amongst the New Zealanders.
“On the decease of a proprietor, instead of an equal portion among his Children, as in the gavel kind of English Law, the Chief of the Sept, made, or was entitled to make, a fresh division of all the lands within the district, allotting to the heirs of the deceased a portion of the integral territory along with the other members of the tribe. The policy of this custom doubtless sprang from the habit of looking on the tribe as one family of occupants, not wholly divested of its original right by the necessary allotment of lands to particular individuals.”
Hallam. (Constitut. Hist. Chap. 18.)
9. Among our Anglo Saxon Fathers, we notice the actual transition from the earlier, to the more advanced, state of things, from Clanship to Nationality.
Their land was either folkland or bookland.
“Folcland, as the word imports, was the land of the folk or people. It was the property of the community. It might be occupied in common, or possessed in severalty; and, in the latter case, it was probably parcelled out to individuals in the folcgemot, or court of the district, and the grant attested by the free men who were then present. But, while it continued to be folcland, it could not be alienated in perpetuity; and therefore on the expiration of the term for which it had been granted, it reverted to the page 9 Community, and was again distributed by the same authority.
“Bocland was held by book or charter. It was land that had been severed by an act of government from the folcland, and converted into an estate of perpetual inheritance.—It might be alienable and devisable, at the will of the proprietor. It might be limited in its descent, without any power of alienation in the possessor.—It was forfeited for various delinquencies to the state.” Hallam. (Middle Ages Suppl. Note, 140.)
Folkland then corresponded to the Native Tenure; Bookland, to the Tenure under a Crown Grant.
10. The Treaty of Waitangi carefully reserved to the Natives all then existing rights of property. It recognised the existence of Tribes and Chiefs, and dealt with them as such. It assured to them “full, exclusive and undisturbed possession of their lands and other properties which they may collectively or individually possess, so long as it is their pleasure to retain the same.” This Tribal right is clearly a right of property, and it is expressly recognised and protected by the Treaty of Waitangi. That Treaty neither enlarged nor restricted the then existing rights of property. It simply left them as they were. At that time, the alleged right of an individual member of a Tribe to alienate a portion of the land of the Tribe was wholly unknown.
The rights which the Natives recognised as page 10 belonging thenceforward to the Crown were such rights as were necessary for the Government of the Country, and for the establishment of the new system. We called them “Sovereignty”; the Natives called them “Kawanatanga,” “Governorship.”
This unknown thing, the “Governorship,” was in some degree defined by a reference to its object. The object was expressed to be “to avert the evil consequences which must result from the absence of Law.” To the new and unknown Office they conceded such powers, to them unknown, as might be necessary for its due exercise. To themselves they retained what they understood full well, the “tino Rangatiratanga,” “full Chiefship,” in respect of all their lands.
These rights of the Tribes collectively, and of the Chiefs have been since that time solemnly and repeatedly recognised by successive Governors, not merely by words but by acts. For, through the Tribes and through the exercise of the Chiefs’ power and influence over the Tribes, all the cessions of land, hitherto made by the Natives to the Crown, have been procured.