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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Native Land Court. [Rapaki]

page 27

Native Land Court. [Rapaki]

Christchurch, April 28th, 1868.

F. D. Fenton, Esq., chief judge; and Henare Pukuatua, Arawa Chief Native Assessor.

Rapaki. (Interlocutory).

The issues upon which it has been arranged that the Court should give an interlocutory decision are as follows:—

1.Are the Kaiapoi natives entitled to share the Rapaki Reserve by their descent from the Ngatitahu tribe?
2.Are all the descendants of the six old men and party equally entitled to the Rapaki Reserve?
3.Who are the descendants of the six old men of Rapaki?
4.Have any natives besides the descendants of the six old men a claim to the reserve by occupation?
5.Have those claimants to the Rapaki Reserve, who now come from Kaiapoi, not lost their right by having their abode at Kaiapoi from the time of the reserves being made?
6.Would the alleged agreement made at Kaiapoi at Mr. Buller's suggestion alter the title to the reserves at Rapaki?

Upon the first and last issue the Court can give a clear and distinct opinion, but the answers to the other issues depend entirely upon the tracing of persons and their relationships, which cannot be done at this stage of the proceedings, and must await further evidence. The general opinion, however, which the Court feels itself able to give will render this subsequent proceeding a matter of no difficulty, and indeed will in all probability so far indicate the views of the Court as to render further evidence unnecessary, by enabling the parties to arrange between themselves to whom the Rapaki Reserves should be granted.

As to the first issue, the Court is of opinion that the persons generally styled in the course of this trial "the Kaiapoi natives "are not entitled to claim any share in the Rapaki reserve by reason of their descent from a remote ancestor common to them and the persons similarly styled "the Rapaki natives"; or, in other words, on the ground that they are all members of the Ngaitahu tribe. It has never been the rule of the Court to recognise such a claim, and, even if stronger reasons had been shown than the counsel for the Kaiapoi natives has been able to produce, the Court would have been very reluctant to depart from a rule which has now received the sanction of innumerable precedents.

page 28

The last issue must be answered in the negative. The admission of certain of the Rapaki natives into the ownership of the Kaiapoi reserve appears to have been entirely voluntary on the part of the owners of the latter, and there is no evidence that they obtained or even sought for any reciprocal rights over the Rapaki reserve. The terms on which the Rapaki natives were admitted to participate in the division of the Kaiapoi reserve are sufficiently indicated in the terms of arrangement of that reserve produced by Pita Te Hori, himself a Kaiapoi native and a signer of the document, the whole instrument being, as counsel will remember, in Mr. Buller's hand-writing—"Tena atu etahi tangata, kei hea atu ranei, he whanaunga ia no matou; a ko ratou anake te uru e ata whakaaetia ana e te Runanga."—"There are other persons living at divers places, who are our relatives, of whom those only shall be admitted to participate who shall be approved by the Assembly." It appears that under this principle, or under the rules contained in the two preceding clauses of the instrument (relating to those men who had married Kaiapoi women, and to certain Port Levy natives) the Kaiapoi Assembly admitted many non-residents into their reserve—from Port Levy, 4; Wairewa, 6: Taumutu, 2; West Coast, 4; Waikouaiti, 1; Kaitaki, Taieri, 1; Kaikoura, 1; Waimatemate, 1.; Ruapuke, 1; Otakoukou, 1; North Island, 1; Rapaki, 18; besides 5 from Moeraki whom the Court does not include in the above list, as it appears that part of the reserve at Kaiapoi was expressly made for them. Now, there is no doubt in the mind of the Court that this admission of owners of other reserves was made with the sanction of Mr. Buller. It has not been shown, what was the official position of that gentleman in the subdivision of the Kaiapoi Reserve, or under what law he was acting; but the evidence has clearly proved that he was appointed by the Government, and that the natives recognised in him an officer of the Government armed with lawful authority, and whose advice or injunctions they did not feel themselves at liberty to refuse or dispute; and, although the arrangements made, as disclosed in documents placed before the Court, appear to have been spontaneous on the part of the natives, there can be no doubt that the whole proceedings were managed by Mr. Buller, and that the natives were assentients to his suggestions. If that gentleman had proceeded further, and applied the same principles in the subdivision of all the other reserves made for the Ngaitahu tribe, substantial justice would have been done, as far as these reserves are concerned, though an injurious confusion would have resulted, many natives owning pieces of ten or twenty acres of land in several widely separated parts of the country, all or most of which they could not possibly cultivate. But his operations began and ended with the Kaiapoi Reserve; and we do not think that the expression "Kaiapoi should be a pattern" (tauira) was ever intended to mean more than a general agreement that the other reserves should be subdivided, not that all the rules then adopted should be applied to all the reserves. Indeed, such a construction would be impossible, for many of the provisions could page 29not apply; such, for instance, as those relating to timber on reserves where there is no timber. But even if all applicable rules were to be adopted in future operations, as far as this case is concerned, the principle of admitted ownerships would be contained solely in the clause previously quoted, namely, that "such relations only should be admitted as might be agreed to by the owners of the reserve (under division)." The Court is therefore of opinion that none of "the Kaiapoi natives," using that phrase with the meaning in which it has been used throughout this trial, have any claim over the Rapaki reserve, except, to use their own words, such "as shall be voluntarily admitted," a condition which does not constitute a right.

The 2nd, 3rd, 4th, and 5th issues are cognate in character, and cannot (especially the 3rd) be finally decided at present, but the general view of the Court on the facts and principles involved may now be indicated with sufficient clearness to render subsequent proceedings simple. Mr. Mantell's evidence is corroborated by the native testimony, and is conclusive that the owners of the land conveyed by the Port Cooper deed, are represented by the signers of it, and for them the Rapaki reserve was made. In the judgment of the Court, these men and their representatives, and those whom they choose to admit as relatives, must be the grantees of the reserve now litigated. It is very probable that a list of names made out under this rule will comprise the whole of the living descendants of the six old men who took possession of the place after Rauparaha's invasion; but whether it does or not, the Court cannot move from the status of the title as fixed in 1849, when the great transactions with Mr. Mantell took place.

The Court feels that it would be leaving its duty only half discharged, if it failed to notice the character of the deeds purporting to extinguish the native title to this island, which have been produced before it. Whether the deed called the "Ngaitahu Deed" can have any effect whatever in law is not a question upon which it is necessary to pronounce any opinion; but, having been compelled in the course of these proceedings to consider the terms and stipulations in this and other deeds produced, the Court could not fail to be struck with the remarkable reservation by the vendors of all their "pas, residences, cultivations, and burial-places, which were to be marked off by surveys, and remain their own property." This provision has not, according to the evidence, been effectually and finally carried out to the present day, nor has any release been sought for by the Crown. The witness, Mr. Mantell, who seems to have had great powers entrusted to him at one time by the Government, to carry out the intentions of the parties to these deeds, appears never to have retained them for a sufficient length of time to enable him to obtain from the natives a deed of conveyance whose validity could neither be questioned from incapacity in the grantee nor from uncertainty as to the parcels or reserved parcels. Conflicting instructions from the Government seem to have reached him with a curious, rapidity, and finally his most useful powers were withdrawn before he had been able page 30effectually to operate under them. The Court feels very strongly that it would be greatly to the honour and advantage of the Crown that the stipulations and reservations in these deeds of purchase should, without further delay, be perfectly observed and provided for. The present large assemblage of the persons interested has removed many of the difficulties which would otherwise attend the obtaining of the necessary agreement and release.

Lastly—although as a rule this Court carefully endeavours to avoid following equities, confining itself to creating and dealing with legal estates—it feels that it ought to express its clear opinion that the Kaiapoi natives have, by adopting a principle in the subdivision of their reserve which this Court cannot follow, suffered a loss to the exact amount of the land apportioned, with Mr. Buller's sanction, to natives for whom other reserves had been set apart; and although, as far as has been shown to the Court, that gentleman had no direct authority at law for what he did, and was in fact a volunteer, or might be compared to an executor de son tort, yet, as before observed, the evidence clearly shows that the natives believed him to be a duly authorised officer of the Crown, and they acted without question upon his suggestions; and we think that natural equity requires that land to the amount lost by them should be found for them elsewhere by the Government.