The Taranaki Question
IV. The Investigation
IV. The Investigation.
1. The Governor had accepted the offer of Teira, subject to an investigation of the title. If the seller could make a good title, the Governor would buy the land. We have seen that the matters in dispute involved numerous and weighty points, both of law and of fact. Among others, the following questions arose:—“What is the Community, and what the Chief, whose consent is needed? or, if their consent is to be dispensed with, can the Governor lawfully dispense with it? What was the effect of Potatau's Cession? Who are the other claimants, besides Teira and his party? page 45 Do they consent? What are their claims? Are those claims valid?
Considering the nature and number of these questions, and the practical consequences that might flow from a conflict between the Government and the Natives,—consequences affecting not only the Settlement of New Plymouth, but the whole Colony: considering also the peculiar relation which the Crown of England has assumed to the Native race, as their guardian and instructor in law and in the arts of peace: it is quite manifest that the occasion demanded the most full and complete inquiry,—an inquiry which should be so large in its compass, so accurate and careful in its several steps, as to leave no room for any reasonable man to question the soundness of the decision. Nothing short of that, could be either just or wise in such a case as this.
2. The persons claiming an interest in the land, were numerous. Some only were on the spot: others were at Waikanae, Queen Charlotte's Sound, or elsewhere.
These persons too were all British subjects, and entitled to “all the rights and privileges of British subjects,” by the Treaty of Waitangi. The assurance thereby given in the Queen's name, has been solemnly repeated many times from that day to this. The last time was only a few weeks ago.
“It is your adoption by Her Majesty as her subjects, which makes it impossible that the Maori page 46 people should be unjustly dispossessed of their lands or property. Every Maori is a member of the British Nation; he is protected by the same law as his English fellow-subject; and it is because you are regarded by the Queen as a part of her own especial people, that you have heard from the lips of each successive Governor the same words of peace and goodwill.” [Speech of Governor Browne, at Kohimarama, 10th July, 1860.]
No right of a British subject is more clear or more precious than this: that the Executive Government shall not use the force at its command to oust any man from his land or deprive him of any right which he claims, until the question between the Crown and the subject has been heard and determined by some competent tribunal; some tribunal perfectly independent of the Government, wielding the full powers of a Court of Justice, and subject to the same checks and safeguards. Two things are needed: 1st, that such a Tribunal shall exist; 2nd, that it shall not determine the question without giving due notice of the proceedings to the opposite party; so that they may be able to make their answer to the claim, and produce evidence in support of their case.
This is a fundamental principle of our English Government; not only of our English Constitution, but, of necessity, a fundamental rule of all free and constitutional Governments everywhere. For without it, the subject has no security against the aggressions of the Government. If the Government can decide page 47 the matter in its own way, and through its own dependent agents, and then take what it claims, the subject is at the mercy of the Government.
How, then, were these our fellow-subjects dealt with in this case? In what precise mode the inquiry was conducted, is at present unknown: but thus much is apparent, that no such inquiry as was due from the Government to the subject, was ever made.
3. Whatever inquiry has taken place on the subject, was carried on by the Land Purchase Department. It now appears that the main part of the business was transacted by Mr Parris, the local Commissioner at New Plymouth. What degree of supervision Mr Parris was subject to, does not appear. It now appears that no inquiry was conducted by Mr McLean, at New Plymouth, except the preliminary inquiry made by him early in 1859. The regular investigation of the title was left to Mr Parris.
It becomes therefore necessary to ask what were the qualifications and powers of these officers in respect to this business. Both of these officers are agents of the Executive Government; employed by the Government for the purpose of purchasing land. Both of them were not only general agents for that purpose, but had also been concerned in that very transaction, in negociating the purchase. One of them, Mr Parris, as a settler at New Plymouth, had an interest, in common with the rest of the Taranaki settlers, in the opening of the Waitara land. How could these page 48 officers, being agents for the purchaser, be fit persons to decide on the validity of all the objections made to the purchase?
Was William King likely to accept a decision, made upon the authority of persons who now denied his right, after having often practically affirmed it, by using all endeavours to obtain his consent?
Moreover, these officers possessed none of the powers requisite for the purpose of conducting such an inquiry. They had no judicial power or authority whatever: nor was their inquiry (whatever it was) accompanied by the safeguards and checks, which would attend a public and regular judicial investigation. So far as appears, a man who would have been properly challenged as a juryman, has been allowed to act as Pleader, Jury, and Judge; or, to speak more correctly, an irregular and insufficient inquiry before an agent of the Government, disqualified in all the ways abovementioned, has been put in the place of that regular, open, and fair trial which every subject of the Crown is entitled to, before his property is taken from him.
4. We have spoken of the unfitness of the agents in the inquiry. We now ask, what was the mode in which the inquiry was made? What was the extent to which it was carried? We are not in possession of any Minutes of Mr Parris’ proceedings. The only published Report is dated July 16th, 1860, seven or eight months after the inquiry terminated. [Further Pap. E. 3 A. p. 2.] It does not furnish any very clear page 49 or full answer to our present question. It is plain that he did not investigate the main question between the Government and William King, viz.,—whether there was any tribal right affecting the land, and whether the tribe or community had consented or not. His statement extends only to the individual rights of the sellers on the spot, Teira and the others. If, as appears, the Government had determined to recognise nothing but the individual right, we cannot be surprised if nothing more was inquired into by the agent of the Government. Still it is much to be regretted, that the Government assumed these matters rather than investigated them; especially as the Government assumption on the point was contrary to what was certified by the Board of Inquiry abovementioned, (p.6.) and by Mr McLean, to be the general rule of Native Tenure.
It is also to be remarked that Mr Parris’ inquiry, even as to individual claims, did not extend beyond the sellers on the spot. It was well known that there were other members of the Tribe at Waikanae, as well as at Wellington, Queen Charlotte's Sound, &c. Mr McLean, the Chief Commissioner, bad expressly instructed Mr Parris personally to visit absentee claimants.
The following is an extract from “Instructions to District Land Purchase Commissioner, relative to Purchase of Land from the Natives at Taranaki,” dated Auckland, August 26th, 1857. [Pap. E.p. 1.]page 50
“In pursuing your inquiries amongst the resident Natives, you should not appear to attach much weight to the claims of absentees, as it may be assumed that they have acquired a vested interest in lands elsewhere, and should not now beconsidered as having an equal claim with their relatives who remain in actual possession of the soil.
“At the same time, I am desired to state that it is His Excellency's wish to have a separate investigation of the claims of absentees, instituted at the places where they reside; when they will be settled with, in proportion to the relative merits of their claims, on a basis which will fully preserve the distinction which should be made between resident and non-resident proprietors.”
Yet neither Mr McLean nor Mr Parris instituted any investigation at Waikanae.
So far as appears, all the notice taken by Mr Parris of absent claimants, was this:—At the time of paying the first instalment to Teira (29th November, 1859,) a declaration was read to the Natives there assembled, that if any man could prove his claim to any piece of land within the block, such claim would be respected. (Pap. E. No. 3. p. 21.) That declaration does not appear to have been conveyed to any, except those who were then on the ground. Nor could it have any legal effect in any case. There was no legal summons, nor any power to take evidence on oath. In short, there was no tribunal.
The following statement has been made by some of the adverse claimants:-page 51
From certain Members of the Ngati awa Tribe to the Superintendent of the Province of Wellington.Waikanae, July 29, 1860.
Greeting to you. These are our words; hear them, that you may declare them openly in the presence of the Governor.
We have portions of land also at Waitara within the piece of land which was wrongly sold by Teira to the Governor; we, as well as those who have been driven off that piece of land. It belonged to all our ancestors. We never heard from the old men who have lately died, that that land belonged only to Ngati tuaho and Ngati hinga, or to the ancestors of Teira and his companions whose pedigree has been lately set forth, or to his father, and that by them it was given to our ancestors and to our fathers as to dependents who should raise food for the ancestors of Teira and his companions, or for his father and the fathers of his companions.
Nor is it land that has lately been discovered by Teira, or by his father or by his companions, that we should be mistaken in what we say about it, or that it should be right to make strong assertions with reference to that land in order to justify their making no account of us and those who have been forcibly driven off it. No. It is old land that belonged to our ancestors.
Now we have heard the defence of Parris’ wrong doing with reference to our portions of land there, which says “A long time was allowed to elapse, and nothing was said about the land: Parris, the Land Commissioner of Taranaki carefully inquired that he might find out who were the owners of the land which was offered him. Parris searched, and at length he found them out.”
These words were intended to excite everybody's admiration, that it might be thought that he really had searched. Listen. We were all the time living at Waikanae; one of us at Otaki. Now Parris never came to make inquiries of us as to whether we had land there or not; nor did any assistant of his in that work come to inquire; nor did he write any letter of inquiry nor did he, in the course of that year, print in the Newspaper his inquiries as to the owners of that land. None, none at all.
Off goes one of the land purchasers to make inquiries of some people of Arapawa, passing over us without inquiry.
We did not hear of it until the time when Teira received the money. Still we felt no apprehension of losing our lands, because we were continually hearing of the strong declaration of Wiremu page 52 Kingi, that he would keep our lands for us. For he is our Chief, a protecting shade for our lands.
The second time was when they went to survey it.
The third time was when the soldiers were sent to take it. How could we get a word in? When the trouble had become serious, then Parris goes and prints in the Newspaper that he has made inquiry.
We ask this question. What are we, peaceable persons who are not joining in the fighting, to do when our lands are wrongly taken away by the Governor? Where shall we seek a way by which we may get our lands restored to us? Shall we seek it from the Queen, or from whom? We imagined that it was for the Law to rectify wrongs. Up to this time our hearts keep anxiously inquiring. We will say no more.
From us, members of Ngati awa, and owners of that land at Waitara.
It is now admitted that the complaint made in the foregoing letter, is well founded: that no one authorised by the Government ever did inquire into the claims at Waikanae. Mr McLean himself visited Queen Charlotte's Sound and Wellington. As to his proceedings at those places, especially at the latter, our information is scanty. But whatever inquiry there might be elsewhere, there was none at Waikanae.
5. The result of the whole inquiry is thus stated by Mr Richmond, in a Memorandum dated 27th April, page 53 1860, nearly two months after the commencement of military operations at the Waitara. (Pap. E. No. 3. p. 34.)
“The Native Secretary, Mr McLean, who in addition to his general experience, has a special acquaintance with the Taranaki Land Question dating back to 1844, denies King's right to interfere. The Rev. John Whiteley, Wesleyan Missionary at New Plymouth, and Mr Parris, the District Land Purchase Commissioner, both of whom have had a long acquaintance with the subject, agree with the Native Secretary. A very valuable testimony to the same effect, is furnished by a letter recently addressed to various Chiefs of Waikato and Mokau, by Wi Tako, a Ngati-awa Chief, a translation of which is appended to this Memorandum
“Wi Tako's evidence carries great weight, as his prepossessions are adverse to the British Government. For some time he has been strenuously advocating the cause of the Maori King; and the letter in question was actually written by him whilst on his return to Wellington from Ngaruawahia, where he had been attending the deliberations of the Maori Council. It is said that he was specially deputed by Potatau to inquire into the merits of the Waitara question.”
Mr Richmond relies in the first place, on the opinion of Mr McLean, the Chief Land Purchase Commissioner. It does not appear whether that opinion was expressed before or after the resort to force, nor whether it was expressed orally or in writing. page 54 As Mr McLean did not himself investigate the title, beyond making a preliminary inquiry early in 1859, his opinion, whensoever and howsoever expressed, must have been founded on Mr Parris’ statements. The only recorded statement of Mr McLean's opinion, in the papers laid before the General Assembly, bears date 23rd July, 1860. A memorandum had been made by the Governor, on the 20th July, in the following words:
“In order to complete the documents about to be printed for both Houses of Assembly, the Governor requests the Chief Land Purchase Commissioner to answer the following questions:—
“First,—Had Tamati Raru, Rawiri, Rauponga, and their people, such a title to the block of land recently purchased at the Waitara, as justified them in selling it to the Queen?
“Second,—Had William King any right to interfere to prevent the sale of the above block of land at the Waitara to the Queen?”
Mr McLean answered as follows:—“Sir,—In reply to your Excellency's memorandum of the 20th inst., I have the honor to state with reference to the first-mentioned question, as to whether Tamati Raru, Rawiri, Rauponga, and their people, had such a title to the block of land recently purchased at the Waitara, as justified them in selling it to the Queen;
“I believe that the above chiefs, conjointly with others at the South associated with them in page 55 the sale, had an undoubted right of disposal to the land in question.
“With reference to the second inquiry, ‘Had William King any right to interfere to prevent the sale of the above block of land at the Waitara to the Queen? The question of title has been carefully investigated. All the evidence that has come before me, including William King's own testimony that the land belonged to the above parties, goes to prove that he had no right to interfere; the interference assumed by him has been obviously based upon opposition to land sales in the Taranaki Province generally, as a prominent member of an anti-land-selling league.” (E. No. 3 a. pp. 4 & 5.)
As to Mr McLean's answer to the first question, it is sufficient to refer to the evidence collected in the preceding chapter, which shews that the right of disposal, claimed by the persons named, is open to the gravest doubt. Nothing is stated by Mr McLean as to the grounds of his opinion.
As to the second question, Mr McLean naturally upholds his subordinate officer. Beyond that, he expresses a very guarded opinion as to William King's right to interfere; throwing out, in reference to that interference, a suggestion which contradicts the following statement in Mr Richmond's own memorandum: “that King's stand is really taken upon his position as a Chief;” and that possibly, under different circumstances “his birth might have given him the command over the Tribe which he pretends to exercise.” (Ib. page 56 p. 34) The subject of the land league, to which Mr McLean's suggestion refers, will be considered in a subsequent chapter.
Next comes the alleged opinion of the Rev. John Whiteley. We have no information as to that gentleman's authority to inquire, or as to the extent of any inquiry made by him. The only qualification mentioned, namely, residence at New Plymouth, is a questionable one in this case. Mr Parris’ inquiry has been considered above.
Last comes the letter of Wi Tako. The passage on which Mr Richmond relies, is evidently that which, in the translation appended to his memorandum, is rendered thus: “you requested me to investigate the subject and send you the truth, which is this. Friends, this wrong is William King's. Another wrong has been committed by Taranaki, greater than all the evils that have been done in the land.”
The Native word he, here rendered “wrong,” is an exceedingly ambiguous word, expressing anything whatever that goes wrong; any trouble, error, or disaster. These same words “tenei he,” rendered in this instance by “this wrong,” occur three times in this letter. In the other two instances, they are rendered in the translation appended to the memorandum, “this war.” If Wi Tako had intended to say that the Governor was in the right, and William King in the wrong, he must have said, “No Wiremu Kingi te he:” the form invariably used by the Natives in such case. But page 57 in fact he was not contrasting William King with the Governor. There is no reference to the Governor in the letter. His business was to ascertain, whether the King party was interested in the quarrel, whether it was necessary or expedient for them to join in it or not. To that point the whole letter refers. He tells his friends that the quarrel at the Waitara was William King's affair, not theirs: it was a question about land only, and did not concern the Maori king. The following is a correct version of the letter:—
Waitoki, Taranaki, April 10, 1860
This is a message from me to Waikato, that you may have a clear understanding about this foolish work of the people of Taranaki. I have come here and have ascertained the grounds of this trouble. It is as follows:—
This is another word. Go, my messenger, to Tikaokao at Tongaporutu, to Wetini at Tarariki, to Takerei at Te Kauri, to Bikaka at Papatea, to Reihana at Whataroa, to Wetini at Hangatiki, to Eruera at Mohoaonui, to Paetai at Huiterangiora, to Te Heuheu at Taupo, to Paerata at Te Papa, to Te Ati at Arohena, to Epiha at Kihikihi, to Ihaia at Hairiui, to Hoani, to Hori te Waru, to Tamahere, and to Tamihana at Rangiaohia: to Rewi at Ngaruawahia, and indeed to all of you who requested me to give you a correct account. It is this:
My friends, this trouble belongs to Wiremu Kingi. Another trouble belongs to the Taranaki people, greater than all the evils of the world. Let your thoughts be consistent with your promises to me, which we have secn. Friends, your business is to do only that which is right. Do not look in this direction towards the foolish things of the world. Friends, do you listen. Formerly was the wrong; afterwards came the right. The only thing about which you have to concern yourselves, is the word of the great Father in Heaven. I mean, one end of the cord is above, one end reaches down to earth. Let that be our warfare, Let this word of yours to me prove true.
Friends, do you listen. The ground of this trouble concerns page 58 the land only. It does not concern the King. Do not you be led astray by the evil spirit.From your faithful friend in the Lord,
Wi Tako Ngatata.
The interpretation adopted by Mr Richmond was expressly repudiated by Wi Tako himself in the presence of Dr Featherstone, as we have seen above, (p. 43.)
It is to be observed, that Mr Richmond's remarks are confined to the question of William King's right to interfere. He treats that as being the only question. The rights of other claimants are not noticed.
On such evidence as the above, the Government was prepared to assert a title to the block.
6. It may be asked “What was the especial need in this case of a public and judicial inquiry?’ “Had not nearly the whole of the Southern Island, and large tracts in the Northern, been acquired through the Land Purchase Department alone, and without recourse to any judicial tribunal?” Certainly. But the difference in the cases is this. In former years the officers of the Land Purchase Department were employed for their proper business—to buy land wherever the owners were willing to sell–to arrange the boundaries, payment, &c. They acted as administrative officers. If some of the owners were unwilling to sell, or if the title was in dispute, the payment stood over till the dispute was settled, and the Natives were agreed among themselves. Then the transaction was completed.page 59
The Government, by standing aloof in this way, induced the Natives to come to a settlement. It was found that the interference of the Pakeha only aggravated the difficulty. The Government carefully avoided any appearance of being eager to obtain land. It also avoided the unsatisfactory course of employing its own agents, the Land Purchase Commissioners, to decide on objections to the purchases, which they had themselves negociated. The Government could not lightly abandon its position as the impartial Protector of both races, in order to put itself in a position, where it must be regarded as the oppressor and enemy of some of its own people. Therefore the Government shrank from making itself a party to a land quarrel; and force was not employed against adverse claimants.
At the Waitara, for the first time, a new plan was adopted. The Governor, in his capacity of land buyer, was now to use against subjects of the Crown the force which is at his disposal as Governor and Commander-in-Chief. If this new principle was to be adopted, a new practice also lecame necessary. Those subjects of the Queen against whom force was to be used, had a right to the protection of the Queen's Courts before force was resorted to. It is not lawful for the Executive Government to use force in a purely civil question, without the authority of a competent judicial tribunal. In this case no such authority has been obtained: no such tribunal has been resorted to.page 60
If there was no existing tribunal, the duty of the Government was to establish one. It could not justly neglect to provide a proper tribunal, and then make its own neglect a reason for refusing to the subjects of the Crown, the protection they were entitled to. To acquire the Waitara land immediately, was not a necessity: to do justice to the Queen's subjects was a necessity.
The matters in issue in this case, were of the same kind precisely as those which have been in issue before the various Courts of Land Claims Commissioners which have been from time to time constituted by the Legislature of this Colony. All these Courts have acted on one plan: they have travelled from spot to spot, giving fair opportunities to all parties concerned of bringing forward their claims, taking evidence on oath, exercising the same powers and protected by the same safeguards as ordinary Courts of Law. There never was any difficulty in obtaining the attendance of the leading Chiefs before those Courts. Why was not the same thing done in this case? If it be necessary, before a Crown Grant can issue to a Land Claimant, that is to say, before a subject receives the bounty of the Queen, why is it not necessary before a subject is ousted of that which belongs to him?
I know that this notion of resorting to a Court in the present case has been called unreasonable and even ludicrous. Yet to my mind no assumption appears more unreasonable or dangerous than that page 61 which is made by the Government on this point, namely, that the Government is excused from doing its duty towards the subject by a belief or surmise that the subject will not do his duty towards the Government. It is said that William King would not have obeyed the summons. Our surmise or opinion, for it could be nothing more, was no reason why he should not be summoned. If he had not come, we should have lost nothing; on the contrary, we should have gained much. Every indication on our part of a disposition to act fairly and openly would have enlisted on our side the natural sense of justice of a large portion of the Native people.
On this point too, as on many others, it is overlooked that William King was one of many. Many there were on the spot claiming ownership: many others were at Walkanae and elsewhere. To shut out all these claimants from a fair trial because William King was contumacious, would be to exalt the position of the Chief, as representing his tribe, much higher than has ever yet been attempted; still more, if they were to be shut out from a fair trial, not because he was contumacious, but only because it was taken for granted that he would be so.
7. The principle here contended for is that which we inherit from our fathers. The least infringement of it would be denounced and resented in our own case. Why are are we so indifferent, when our fellow-subjects are concerned? Let no man think that this page 62 is the pedantry of a lawyer, insisting on old maxims ill suited to our circumstances. This principle comes to us from the wisest and ablest of our fathers. It is no theory of bookmen. On the contrary, it is the practical wisdom of the men who built up our English Commonwealth. Those men knew that justice was the life and health of every human society: that peace and growth could not be, where justice was not: they knew that there was no security for the power of the state being wielded justly, where that power was not wielded according to rules more clear, and methods more patient, than those of political expediency. They therefore forbad the Executive Government to use its power against any man, the meanest in the State, without due sanction of Law. By this principle, England has grown and thriven. Without this principle, New Zealand will not grow or thrive.
The Government, in protecting the Native owners, would have protected itself and the Colony. That which was the right of the Native in common with ourselves was also the interest of the English settler and of the Government itself. The possible consequences to the settlers generally, especially to the scattered out-settlers, were serious enough to entitle them to an inquiry which should exclude (as far as man can exclude) every possible doubt as to the soundness and justice of our proceedings, and should shew that it was absolutely necessary to take the course contemplated.page 63
8. This then is the result. The points in dispute are many and difficult. No decision has yet been pronounced upon them by any competent or trustworthy tribunal. Mr Parris’ inquiry is wholly insufficient to shew that the adverse claims are not sound and well founded, both on behalf of the tribe at large and of the individual claimants. The Colony is imperilled upon an issue, which has never been properly tried.