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



This is a case in which Apihai te Kawau, on behalf of himself and the members of the tribes Te Taou, Ngaoho, and Te Uringutu, claims a certificate of title to an estate at Okahu, on the shores of the Waitemata, containing about 700 acres.

Heteraka Takapuna, on behalf of himself, as a remnant of the ancient possessors of this isthmus, and on behalf of himself and the tribes Ngatipaoa, Ngatimaru, Ngatiwhanaunga. and Ngatitamatera, appears as a counter claimant.

Hori Tauroa, on behalf of himself, Ahipene Kaihau, and Matene Raketonga, members of the tribe Ngatiteata, appears as a co-claimant, not denying the title of the claimants, but asserting a right to come in along with them, through ancestral relationship and occupation.

Paora te Iwi, of the tribe Ngatitamaoho, sets up a similar right on behalf of himself.

Wiremu te Wheoro, of the Waikato tribe Ngatinaho, and Hawira Maki, of the tribe Ngatipou, assert similar rights on behalf of themselves.

All the counter-claimants seek.only for a partition and a share in the estate along with the claimants, except Heteraka Takapuna, who denies the title of any person except himself and those who claim under or with him, though this extreme position was not taken by his counsel.

I will here mention that I propose to use the name of Orakei or of Okahu as applying (generally) to the whole estate; the smaller names, such as Wakatakataka, although necessarily used in the evidence, may be dropped in this judgment.

I intend also generally to use the first person in expressing the opinion of the Court, simply for convenience of diction, but I should add that in all points the Assessor entirely concurs with me. It is desirable also that counsel should be made aware that he understood their addresses as they were delivered in English, although, as he expressed himself, he would not have been able to reply to them in that language.

There are a few points brought under the notice of the Court by the several counsel which I will. notice here before proceeding to treat the merits of the case itself.

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1.It was with great regret that I observed that Hori Tauroa, who sat as an assessor in the previous case, where the parties were substantially the same, appeared as a claimant in this. Nothing can be more objectionable, and more repugnant to proper sentiment, than that an interested person should sit as an administrator of justice. Of course, such conduct cannot pass unnoticed, and it will be my duty to ask the Government to advise His Excellency to remove Tauroa from the list of Assessors. But although the confidence of parties must necessarily be shaken in the decision which was given in the previous trial, it does not appear to me that the present proceedings can be in any way impeached by this malfeasance. Of course, he now comes before the Court with an antecedent prepossession in my mind against his perfect integrity—a prepossession confirmed by a passage in his own evidence, where he says, "Heteraka's claim is as good as mine," although he decided against it, and now urges his own.
2.Many references were made by witnesses as to the doings of Captain Symonds, principally for the purpose of fixing dates. As it appeared in the course of the case that there were two gentlemen answering to this description who were not often distinguished by the witnesses, the Court is deprived of the assistance which it might have derived from the known and attested facts connected with them which it might have obtained if the Christian names of each had had been known and given.
3.The learned counsel for Heteraka drew my attention to an inconvenience—a hardship, in fact, as he put it—under which he felt himself to be labouring by the rule of Court which regulates the course of proceedings. I have given the subject some consideration, and cannot convince myself that there would be in reality any injustice in a rule which would in fact merely give the person in possession the advantage of being in the position of a defendant in an action of ejectment in the Supreme Court. But Mr. Gillies thinks that the rule goes further than that, especially in the matter of addresses of counsel to the Court. It was not in the power of the Court to alter it, and I do not think, however, that any substantial failure of justice has taken place in this case from this cause, for after the lengthened inquiry that has taken place, and the very complete manner in which the cases on all sides were placed before the Court, I cannot suppose that any alteration in the course of proceedings would have affected the result.
4.Much time was occupied in cross-examination, the object of which at the time it was difficult to perceive. For instance, Mr. Hesketh used much labour and great skill in endeavouring to upset Apihai's alleged possession from datés anterior to the coming of the first Governor; and Mr. Mackay, in Mr. Gillies' absence, cross-examined at considerable length, to prove or disprove descents from Potukeka, also induced the Court to recall a witness for the purpose of showing the political status of a rahi or pahi, and the distinction between them and common mokai or slaves. I did page 55not interrupt these gentlemen, trusting in perfect faith that they would show the Court, when the proper time came, how their own cases would be furthered by the course which they were taking. But this was not done, and the Court feels that if Mr. Hesketh had succeeded in upsetting Apihai's claim he would in so doing, as Mr. Gillies observed in his opening address, have only produced the effect of entirely destroying his own case; and the matters referred to, as inquired into by Mr. Mackay, appear to have been irrelevant. I may add that I am quite at a loss to discover what bearing the history of the mere pounamu called "Kahotea," which was investigated by Mr. MacCormick, can possibly have in this case. I merely mention these matters, as involving a painful waste of time.
5.There remains one more question for notice by the Court— viz., the appearance of Mr. Mackay, a Civil Commissioner, as agent for one of the parties in this suit. At the first sitting of the Court, Mr. Gillies applied for an adjournment on the ground that Mr. Mackay, who was instructing him, was absent, unavoidably detained at the Thames by important Government affairs, and said that he would be entirely unable to do justice to his clients in Mr. Mackay's absence, and urged for an adjournment. On Mr. MacCormick opposing the adjournment, Mr. Gillies stated that, if the Court determined to proceed, his clients would be placed in such a disadvantageous position that he should consider it his duty to ask for. a re-hearing. The Court was of opinion that, if a re-hearing were asked for, supported by the authority of Mr. Mackay, it would in all probability be granted; and such a result appeared to be so unfortunate, not only as regards the great loss of time and expenditure of money, but also as leaving this agitating question for some time longer unsettled, that the Court thought the wisest course, and the most advantageous one for all parties under such circumstances, was that the adjournment should be granted.

At a subsequent stage of the proceedings, when Mr. Mackay was called as a witness, chiefly, as it appeared to the Court, to give Mr. MacCormick an opportunity of asking him any questions he might wish, that gentleman objected to his appearing, and argued on the ground of privilege. The Court decided that the privilege was with Mr. Mackay, and not with the suitors, that if he, called as a witness, stated on his oath that his giving evidence or producing papers would be prejudicial to the public service, the Court had no power to compel him to answer, but that the discretion to plead the privilege was with himself. In his concluding address to the Court, Mr. MacCormick referred in a very earnest manner to the disadvantages under which he felt himself to be labouring by reason of Mr. Mackay's appearance. He said that a Civil Commissioner, or any officer of the Government, had no moral right to use in a private suit communications made to him in confidence as a public officer; that such a course must be highly prejudicial to the Government, as tending to destroy the trust which should exist between the natives and officers of the Crown, especially officers purely charged with the page 56management of native affairs. And he added that my mind was affected, by his presence as I had already shown by granting the adjournment; and although he felt sure that my judgment would not be influenced, he could not have the same confidence with respect to the Assessor, who was in constant communication with Mr. Mackay, and looked to him as his superior officer, with power to influence his advancement or prejudice his future position.

It does not appear to me that the Court has any concern with the relations which exist, or may exist, between Mr. Mackay and the Government, or between the natives and Mr. Mackay as an agent of the Government; nor can Mr. MacCormick have anything to complain of, unless—

(1.)Mr. Mackay has disclosed matters entrusted to him in confidence by virtue of his position, to the prejudice of Mr. MacCormick's clients; or—
(2.)That the conduct of the Court is influenced by his presence or affected by his interference in this private suit.

The first is not alleged. The second was hinted at as far as concerns myself, and broadly stated as far as the Assessor is concerned. Now, I am inclined to think that Mr. Gillies' view of human nature as it is found among Englishmen is the more correct one. He appealed to the Court not to be too jealous about the appearance of the Crown officer on the side of his clients; not, in fact, to keep too strict a guard against Executive influence, lest we should err on the other side; but to decide as if there were no such person as Mr. Mackay present. The letter of the Native Minister to a Judge of this Court, to which Mr. MacCormick referred, has not, so far as my knowledge extends, in any way influenced, nor is likely to influence, the conduct of any Judge of this Court, and I cannot discover any grounds for entertaining the apprehension which Mr. MacCormick has expressed. Mr. Gillies read our common-nature more truly. But there is another point of view to which I wish to direct the attention of parties and their counsel, with reference to Mr. Mackay's appearance and evidence. I gathered from his evidence that his clients were very powerful tribes, that they were excited about this contest, and that he had on the previous occasion of an adverse decision, restrained them from any excesses, and would endeavour, in case of another, to do so again. Now, without for a moment supposing that this information was intended as a menace to the Court, it struck me at the time that Mr. Mackay did not appear to have contemplated a decision adverse to the other side, which represents tribes, with their allies at Kaipara, Hokianga, and Waikato, equally powerful, and, possibly, equally excited. His influence could avail little with them, for they would regard him as a friend of their opponents, and a prime agent in their discomfiture.

Now, when I remember how, at a previous sitting of this Court, Ngatipaoa, his present clients, were defeated in a claim they made to land on the other side of Tamaki, and how effectively Mr, Mackay page 57stepped in and made an arrangement which healed their wounded feelings, and made them part from their victorious competitors in perfect amity; and when I think of the great services he has rendered to this Court on other occasions when he occupied an impartial and, consequently, an influential position, I cannot but regret that on this occasion the Court cannot rely with the same confidence upon the efficacy of his intervention, for there are three parties to satisfy, and the decision must necessarily afford disappointment and loss to some of them.

Therefore, although I do not think Mr. McCormick suffers by this intromission, and the Court has not been "overshadowed by the Crown," yet I cannot conceal from myself that the Court is not in the position it ought to occupy with reference to the Executive Government; and intimately concerned as its proceedings are, and unavoidably must be, with the peace of the country, my present mind is, that I (speaking as an individual Judge of the Court), shall decline in future to proceed with any case in which the Crown's officer appears, either with or without reward, as assisting either of the suitors.

The case has presented unusual difficulties, or rather the great value of the property has caused so much care and attention to be devoted to the preparation of the cases, that an appearance of intricacy and complication has been given to transactions which, in themselves, are clear and intelligible.

When once the history of the case is understood, and those passages which really have no bearing on the questions to be decided are eliminated from the evidence, the great principles which have governed this Court in determining Maori custom, or the laws of native ownership of lands, will suffice to guide us to a safe decision as to the effect of what remains.

The history of this estate is very much mixed up with the history of this isthmus, and that again is almost an epitome of the history of New Zealand during many years, for this was the highway of the armies of the tribes in old days; and whether going North or South, all war parties passed through or touched at Tamaki.

For the sake of brevity and convenience, I have condensed this part of the question into the form of a historical chronology, and I have spent much time in preparing this statement in order that the judgment might be as short as possible. I cannot expect that all the dates and statements contained in this paper will be acknowledged as absolutely accurate, but I have got the best results I could from conflicting evidence, and in places where the statements seem to be contrary to some particular evidence, it must not be supposed that I have not noticed that evidence, but that I have preferred some other to it.

The land about this isthmus appears to have gone in early days under the general name of Tamaki, though that name is now confined to the river so called and a limited district adjoining it. In early times, the part of New Zealand comprised between lines drawn from Cape page 58Rodney across to the West Coast, and from Waikato to Tauranga, were in the possession of one great tribe, called, from their ancestor Oho, Ngaoho. As the tribe increased, it seems to have divided itself, without any express compact or arrangement, but simply by the gradual operation of ordinary causes, into sections, and these sections in the same unmarked and gradual manner became the possessors or persons especially entitled to reside in particular and partially defined sections of the original great tribal estate. These sections of the Ngaoho came to be distinguished by names taken or acquired from different origins. Those which have been brought to notice in this trial are Ngariki, Ngaiwi, and Ngaoho. Ngariki inhabited, chiefly the land about and to the south of Papakura, Ngaiwi the interval between Papakura and the waters of Waitemata, and Ngaoho to the north of Waitemata, in the direction of Kaipara. At a later period Ngaiwi divided itself again into Ngaiwi and Te Waiohua, and a species of half-recognised boundary seems at a still later period to have existed between them at the canoe portage of Otahuhu, half of the peninsula of Mangere and Ihumatao being attached to the northerly subdivision. I do not think that this territorial division was ever distinctly laid down and agreed to, but there was a sort of understanding that that portion of the tribe who looked up to Hua (the origin of the name), who lived at Mangakiekie (One-tree Hill) and Mangere, and who inhabited the country around that place, should continue to live there, and should be called Waiohua, and those who remained in the southern part of the district should continue to be called after their ancestor Ngaiwi. But the names never had any definite meaning, and a person was still described by both names, or by either of them indiscriminately, and the territorial understanding carried no evidence of "ownership," for, in these days, the idea of ownership of land, or of anything else, except slaves and other movable property, did not exist.

As these original tribes became mixed up with intruding tribes, new names arose, such as Te Aua, Te Akitai, and many others, and the long inhabiting a particular piece of land by a particular tribe gradually grew into a right of possession, which was recognised as long as the tribe was strong enough to protect their persons from hostile attack without fleeing from the land to the protection of other tribes, or to the concealment of the mountains.

Thus at the opening of our history we find that the part of the Tamaki district to the north of Otahuhu portage, including part of the Mangere peninsula, was inhabited by a tribe called Waiohua generally, but still bearing the name of Ngaiwi. The northern section of the Ngaoho, who seem to have retained their original name, were at the same time gradually amalgamating at Kaipara with a conquering tribe from the North, called Ngaririki, subsequently called Te Taou, and the original name of Ngaoho disappeared in favour of the name of the intruders. At a later period (detailed hereafter) when Te Taou invaded this country and conquered the Waiohua, their chiefs intermarried with the women of the land; and their offspring, page 59at the suggestion of Awarua, one of the chief of them, revived the old name of the original tribe, and the doubly-mixed race appear again as Ngaoho—being, in fact, Ngaoho the Second. Others of the remnants of the nearly exterminated people of Tamaki gradually returned from their concealment, or the abodes of the Waikato tribes, whither they had fled for protection at the time of the conquest, were received into the conquerors' tribes now resident, and this "collection of remnants," as one of the witnesses called them, received the name of Te Uringutu. Apihai Te Kawau, by intermarriages of his ancestors on all sides, is now the chief these three tribes, Te Taohu, Ngaoho (the Second), and Te Uringutu, and on their behalf is the claimant in this suit. The pure Te Taou, i.e., the descendants of the Kaipara tribe Ngaririki, from their intermarriages with the original Ngaoho (Ngaoho No. 1), have a chief of their own (Tautari), and are not altogether without jealousy of Paul and other descendants of the mixture with Ngaoho No. 2, but they look up to Apihai as their head chief, for he is, as Sir Walter Scott describes a Highland chief, "the man of many cousins."

The Ngatiteata and Ngatitamaoho, Ngatiuaho, and Ngatipou, are inhabitants of the southern or western sides of Manukau, and the result of intermarriages of Waikato tribes with the southern portion of the great original tribe Ngaoho. The Waikatos intruded from the South in precisely the same manner, though at different periods, as the Taou did from the North, though in my judgment Maki and Ngatipou would be more fitly included amongst the Uringutu than in tribes that have come to be regarded as almost purely Waikato.

Heteraka Takapuna is a member of three tribes, Ngatitai, Ngatikahu, and Ngatipoataniwha, and claims also to be descended from the Waiohua; and whether this claim is made out, or whether he and his co-claimants (the Thames tribes) have, by their ancestors or themselves, ever intruded themselves into this country is one of the principal subjects of this inquiry.