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



Accordingly we find in 1835 Te Wherowhero, with his own personal tribes Ngatimahuta, Ngatiapakura, &c, brought down Ngatiteata, Ngatitamaoho, Te Akitai, and the other Manukau tribes, along with Te Taou, Ngaoho, and Ngatiwhatua. A small party came first to prepare for the greater migration, stopping on their way at Waihekura and Kaitangata. places on the Ngatitipa's land in Waikato, where they put in crops, left them to grow, and came on to Manukau. Finally Te Wherowhero settled with his own people at Awhitu, as a guarantee of the protection of the Waikato to the rest. Ngatiteata took possession of their own lands at Awhitu. Ngatitamaoho returned to their places at Pehiakura, Te Akitai to Pukaki, and the other Manakau tribes to their former residences. Apihai and his people took possession of Puponga, where they built a pa called Karangahape.

In this year the missionaries, Dr. Maunsell and others, took up a station at Puriri, near the mouth of the Thames. Possibly at their instigation, otherwise spontaneously, a meeting of the Thames and Waikato tribes was convened for the purpose of formally declaring peace. This peacemaking was necessary, not only on account of the great war between the tribes which had terminated in the expulsion of Ngatipaoa from the Waikato valley, but also on account of the attack made by Te Aua, Ngatitamaoho, and other Waikato-Manukau tribes, assisted by Apihai and some Ngaoho, upon Ngatipaoa at Whakatiwai. The object of this attack was to balance an "utu" account, and in no way concerned the land under investigation or page 76any other land. The Ngatipaoa side say that this account had been previously squared, and that the killings which happened at this attack were murders. The other side deny this, and say that the balance was against them previously, but the deaths of the three men who fell wound up the account, and the whole proceeding was "tika." Whether it was so or not is of no consequence as regards this suit. Nor can this peacemaking or any other peacemaking at which no reference is made to land, and where the previous quarrels had been purely personal, and no land had been seized or occupied which had been previously in the possession of the other side, be regarded as a matter which this Court is called upon to consider in deciding ownerships of land. If in consequence of wars a tribe abandons a place in their possession because it is too close to the hostile tribe, or too open to attack by them, and the hostile tribe takes no possession, and the land simply lies vacant until better times come and the previous owners return, nothing concerning the title can be founded on such evacuation.; and the peace when it is made merely affords to the temporary emigrants the assurance of their personal safety on their return to occupy their former residences. No doubt that is the native custom. And not one of the witnesses on any side asserts that at any of the peacemakings any conditions or stipulations were made or proposed with respect to any land except Mr. Fairburn's purchase. Kahukoti's conversations will be noticed hereafter.

In December, 1835, Kahukoti, chief of Ngatipaoa, and Taraia, chief of Ngatitamatera, arrived at Tamaki with Dr. Maunsell; and Te Wherowhero and Kaihau, on behalf of Waikato, went over to Puneke, on the Tamaki river, to meet them. Here peace was finally concluded. Uruamo and Watarangi, of Te Taou, accompanied Te Wherowhero; but Apihai and Ngaoho, and the bulk of the people, remained on the Manukau side, and did not join in the peace-making.

About the same time Apihai and his friends sold to Mr. Mitchell, on behalf of a Scotch company, a vast tract of country, extending from Manukau Heads to Tamaki, and thence along the Waitemata to Brigham's mill on the West Coast. Mr. White said this transaction occurred in 1833, but I think he must be wrong.

The succeeding year, 1836, Apihai and his people were living at Karangahape, but they commenced to cultivate at Mangere. Later on in the year, they built a pa at Mangere and another at Ihumatao. Another meeting, said by some to be a missionary meeting, took place at Otahuhu, at which the peace between Ngatipaoa and Waikato was confirmed in an informal manner. Te Taou came to the shores of the Waitemata, and began to cultivate the land about Horotiu (Queenstreet). Mauinaina was still unoccupied and desolate. Captain Wing made a chart of Manukau harbour, which he produced in Court. It showed Mr. Mitchell's house as then standing at Karangahape. Potatau's people commenced planting at Onehunga, and Te Tinana. of Te Taou, cleared for cultivation at Rangitoto, near Orakei.

In April of this year, Uruamo and Watarangi, with 60 of their people (Te Taou), went to Orere, near Taupo, on a peacemaking page 77visit to Kahukoti, chief of Ngatipaoa, on account of the Whakatiwai killings. They made presents as payment for the dead, performed the customary ceremonies, and finally made peace. At the great meeting at Tamaki, when peace was made between Waikato and Ngatipaoa, it was stated that Uruamo requested Kahukoti, to allow Te Taou to occupy Okahu, to which he replied, "Presently;" and the conversation was renewed at this Orere visit. This is what passed according to the evidence of Timothy Tapaura, a Whakatohea slave who was present. Uruamo said to Kahukoti, "I want you to agree that Okahu shall be lived upon by us;" to which Kahukoti replied, "Yes, light a fire there for both of us." This account is directly denied by all the claimants' witnesses. None of them, however, were present except Warena Hengia. He says there was a conversation, and his account of it is this: Uruamo said to Kahukoti. "My friend, my fire will now burn at my place." Kahukoti replied, "My father, to whom does your kainga belong?" Now, as the Ngatipaoa allege that this permission given by Kahukoti was the only ground of the undisturbed possession held by Apihai of this estate for more than 30 years, it is evidently necessary to inquire into this conversation. The, circumstances were these:—After the usual salutations and ceremonies had been performed, the visitors were shown to a large house in which they took up their quarters. In the evening Kahukoti came to visit his guest, according to the usual custom, and then this conversation happened. Warena Hengia is the only witness on Te Taou side who knows anything about it, and there are two on the other side who state that they heard of it, and that it was as detailed by Timoti Tapaura. Now, it must be remembered that the last time Okahu was permanently occupied was the year 1826, at the time of the battle of Ikaranganui, at which time Mauinaina had been three or four years captured, and its occupiers dispersed amongst the Waikatos. What had happened in the interval between the two peoples? Nothing, except the attack at Whakatiwai, which was the occasion of the present meeting. It must be remembered that at the fall of Mauinaina the tribes were in perfect amity, and the year previous to that attack were fighting together against Koperu's army. What possible reason was there then for the alleged permission to be asked? If we go back to the time anterior to Koperu, and take the idea most favourable to Ngatipaoa, viz., that both people were then cultivating there, we can find no reason for asking permission to return to that status, especially as Ngatipaoa, had totally abandoned that part of the country. It might possibly be suggested that the "tapu" for Mauinaina extended over Okahu, and that Te Taou wanted the assent of Ngatipaoa to breaking the "tapu." But this will not help us, for the "tapu," if it ever extended over Okahu, had been broken and disregarded long before, for, as we have seen, the whole tribes Te Taou, Ngaoho, and Uringutu were living and cooking there, at and before the battle of Ikaranganui: 'But I do not believe that Okahu ever was or could be included in the Mauinaina "tapu," for no blood was shed there. Moreover, the whole tale as recounted by Ngatipaoa page 78is not only quite inconsistent with Maori custom, but also with Ngatipaoa's present case. Heteraka Takapuna is alleged to be the putaki of the Ngatipaoa title, and yet he does not appear to have been consulted—as consulted he would have been if his title had been recognised then as now, and if such an event had really happened. Moreover, there is no pretence made of any previous meetings or consultations of the Ngatipaoa chiefs to discuss such an important question. The well-known Maori habit seems to have been entirely forgotten, and a chief is stated to have answered a question of which it is alleged he had had previous notice at Otahuhu, and the consideration of which he had himself adjourned, without a single consultation with the tribe in the interval, and the first knowledge the tribe had of this chief's determination is a proclamation made in the morning outside his house. Besides, if Uruamo had wanted to make such an important demand, would he have trusted to the accident of Kahukoti's coming to his house? Would he not rather have sought an interview with Kahukoti wherever he could be found? And when the first request was made at Otahuhu, would not Ngatipaoa, if their present case was then believed in by themselves, have consulted with Heteraka in the interval.

The Court cannot accept either the account given by the Ngatipaoa witnesses of this conversation, or the interpretation put upon it by them. That some such conversation did pass I quite believe. I think that Te Taou and Ngaoho were aware that the Thames tribes still nourished feelings of revenge on account of the killing of their friends Rewa, Hauruia, and Kapatahi, at Wakatiwai; and that they were perfectly correct in this belief is shown by the fact that even six years later Ngatiwhanaunga gave Haora Tipa a paddle and two tomahawks, called after their dead men, as a sign that he should go and avenge their deaths. And it is quite natural that so long as this feeling was known to exist Te Taou and Ngaoho should be unwilling to locate themselves permanently, with their women and children, on the shores of the Waitemata, where they would be peculiarly open to attacks and surprises from Ngatipaoa, who, although they had suffered greatly, were still a powerful tribe. One can well understand, therefore, how, after peace had been formally concluded, and the ancient feeling of amity restored, the Taou chief would exclaim to his host, when he came to pay him a friendly visit in the evening, "I can now return without anxiety to my old home." To which the other would reply, "Certainly, why should you not go to your own place?" And even if Kahukoti had replied, "Yes, return there and light a fire for both of us," I can see nothing in the words beyond the polite expression which is usually given by the Maoris to their language when talking with persons of rank with whom they are in friendship. When travelling with a Maori in his canoe, he never speaks of " my canoe;" the phrase is always "to taua waka," "the canoe of us two," and if his guest smokes he will give or ask for " to taua paipa," whether it belongs to himself or to you; and if you live on his land, he will speak to you of" to taua kainga," without the slightest idea of con-page 79ferring any title upon you. And this expression—"tahuna he ahi ma tana,"—would (even if used) mean no more than a civil way of expressing that he should be glad to see Te Taou living at Ikahu, for he would be then often able to come and see them, and accept their hospitality.

The Court, then, being of opinion that no importance whatever is to be attached to this conversation of Kahukoti, and that it cannot be construed into acknowledging a title on one part, or giving a temporary leave of residence on the other, I shall make no further reference to it. At the end of this year Te Taou and Ngaoho were cultivating at Okahu.