Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.
New Plymouth, June, 1866. Oakura
F. D. Fenton, Esq., Chief Judge.John Rogan., Esq., Judge; and Henry A. H. Monro, Esq.,Judge. Crown Agent: Mr. AtkinsonOakura.
The Oakura Block is part of the Middle Taranaki District, constituted a district under the New Zealand Settlements Act 1863, by a proclamation of January 30th, 1865, and it was set apart as a site for settlement, declared to be subject to the provisions of the Act, and to be reserved and taken for the purposes thereof, by Order in Council made on the same day.
The claims for compensation which have been referred to this Court by the Colonial Secretary are very numerous, and come from many distant parts of the Colony; but they may be collected into the following heads:—1, Chatham Islands; 2, Nelson and the Middle Island;3, Wellington;4, Waikanae and Otaki;5, Auckland, Waikato, etc.; 6, the resident claims.
(1). The claims from the Chatham Islands amount to 158, and the facts of the case are as follows:—
Previously to the great Waikato invasion between 1820 and 1830, these Chatham Islanders formed part of the great tribe called Taranaki, and resided at Hauranga on this block. They fled south from fear of the Waikato arms, and, after various wanderings, finally took possession of and settled in the Chatham Islands. There they have continued to dwell up to the present time, one or more of them having returned to visit their relations, but none of them having re-occupied or having attempted to domicile themselves in their old possessions. Many of the original refugees have of course died, but the children of these persons, as well as the survivors of the original migration, urge claims to their ancestral possessions. The conclusion at which we have arrived, after our experience in the Compensation Court, and as members also of the Native Land Court, is that before the establishment of the British Government in 1840 the great rule which governed Maori rights to land was force—i.e., that a tribe or association of persons held possession of a certain tract of country until expelled from it by superior power, and that on such expulsion, if the invaders settled upon the evacuated territory, it remained theirs until they in their turn had to yield it to others. It is even very doubtful whether the relation of persons to the land was, as a rule, what in the English sense of the term could be styled ownership. Land, with its places of strength, concealment, and page 10security, seems to have been regarded more as a means of maintaining and securing the men who occupied, than the men who occupied it as a means of defending and maintaining possession of the land; so much so, that voluntary migrations were not unfrequent, and we have met with cases in which whole tribes abandoned their ancestral territory and migrated to other parts of the country where the means of living were more plentiful, or where by an amicable amalgamation with other tribes they might hope for a more secure or comfortable existence. A case of this sort appears to have happened on this very block, to which a tribe voluntarily migrated from Kaipara, who merged themselves into the Taranaki tribe, of which they now form an integral part, and in which its members can no longer be distinguished.
We do not think that it can reasonably be maintained that the British Government came to this Colony to improve Maori titles, or to reinstate persons in possessions from which they had been expelled before 1840, or which they had voluntarily abandoned previously to that time. Having found it absolutely necessary to fix some point of time at which the titles, as far as this Court is concerned, must be regarded as settled, we have decided that that point of time must be the establishment of the British Government in 1840, and all persons who are proved to have been the actual owners or possessors of land at that time, must (with their successors) be regarded as the owners or possessors of those lands now, except in cases where changes of ownership or possession have subsequently taken place, with the consent, expressed or tacit, of the Government, or without its actual interference to prevent these changes.
Compelled by absolute necessity to lay down a rule for our guidance as to the time and circumstances when the ownership or title of expelled owners could rightly be regarded as having terminated, we: can find no other rule to establish than the one now expressed, and we have endeavoured to adhere to it as a fixed rule for our enquiries under The New Zealand Settlements Acts, where the questions at issue are matters purely between the Crown and a portion of its Maori subjects. Of course the rule cannot be so strictly applied in the Native Lands Court, where the questions to be tried are rights between the Maoris inter se, but even in that Court the rale is adhered to, except in rare instances. If greater latitude is allowed, and the date of ownership is permitted to be variable, the confusion will be such as to render any solution of this great question, upon any principle of justice, perfectly hopeless. Thus, we know that there are claims preferred by the Otaki natives to Maungatautari and the whole of Waikato, from which countries they have long been expelled, and from which, at an earlier date, they themselves drove out other tribes. Again, Te Rauparaha's people claim Kawhia on similar grounds, and have sent in claims.
We find, then, that according to the evidence, that branch of the Taranaki tribe which now inhabits the Chatham Islands was expelled from this part of the colony by the Waikato tribes previ-page 11ously to the year 1830, and that since the establishment of the Government in 1840 none of these persons have returned to reoccupy the lands from which they were driven, and we therefore think that they have no title, interest, or claim to any land within this block, on account of which this Court can order compensation.