Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.
The case of Heteraka Takapuna has been very carefully considered, not only because the Court felt itself called upon to devote more than usual time and thought to a case on which so-much labour has been expended by the parties, but also because it desired to discover or to recognise the facts or principles in the case which called forth so much energy and skill. But the Court has made the endeavour in vain. Of all the claims which we have been called upon to consider, we think Heteraka's is the weakest, and the only obscurity that could possibly surround it is caused merely by the immense mass of facts which have been connected with it, and which render it difficult to ascertain its real character.
It is impossible to review all the evidence brought forward in support of Heteraka's claim, but as he was himself examined, and gave a full statement of his case, I will as briefly as possible notice some things that he said, because the case as put forth by him differs in important particulars from that elaborated by his counsel:—He commences with the early times, and states that the first inhabitants of this country were destroyed by Ngatiwhatua. "Ngatiwhatua is the tribe that I know attacked Waiohua; I mean Te Taou. Te Taou destroyed Ngaiwi, also Ngatiwhanaunga,—and for another reason. I don't know of any others." And on cross-examination the next sitting-day he stated that the Thames tribes, naming them all, are the people who slaughtered the original inhabitants, and added that he Jhad been scolded in the interval for making the previous statement.
"I was born at Orakei."
Two witnesses, one of whom was grown up and both living when Heteraka was born, contradicted this. Paramina says: "I know where Heteraka was born. He was born at Whaitere, in Kaipara. I was living there at the time. He was grown up when he left Kaipara. He left Kaipara on account of a squabble with another boy, Te Po. They quarrelled about fern root. Then he and his father Purehurehu left. There is no doubt about his being born there. I knew Heteraka's mother, Tahikura." She was of Ngatiwhatua, hapu Tematarahurahu. Heteraka admits having lived with his mother at Kaipara as a child, and that his mother lived there before she was married, and that in fact his father went there to marry her. and remained there some time, but came down to Orakei, apparently to give birth to him, returning immediately afterwards.
This may be true, but Heteraka says also that his brothers and sisters were born there. Now, remembering that he states that his father and mother were married at Kaipara, and remained there some time after their marriage; that he was the first-born, that they were again at Kaipara when he was knee-high; that, as he says in another place, " She was a young woman when she went there, and an old page 90woman when she came away—when they had to leave about the Te Po quarrel; that they then went to Te Weiti, and from there to live amongst the Ngatipaoa, whence they went to Waikato, where his mother died; it is difficult to see how the latter part of the statement as to his brothers and sisters can be true. I think the evidence against Heteraka's statement as to his place of birth is to be preferred, though not as decisive as that relating to Hehewa's burial place.
On cross-examination the following questions were put and answers made:—
Has Te Kawau any claim to Orakei?—No.
Has Te Taou any claim?—No.
Has Te Taou any claim to any land about here, from Onehunga to Waitemata?—Kaore i eke. Formerly they had not but in consequence of their fighting they have.
Did Te Taou own Te Pukapuka?—No.
Did Apihai's people own any of these?—Formerly, until now they have no claim.
Whose were the lands from the Tamaki to Te Whau before the Government came?—Ngatipaoa's.
Did not Ngatiwhanaunga join?—Yes.
Is the claim of Ngatipaoa, Ngatiwhanaunga, Ngatitamatera, and Ngatimaru of equal goodness, i.e., on the same grounds?—Yes, there is one "take."
Have they always had this claim?—Yes, long before the fighting.
Had Apihai and his people never any claim?—None whatever.
Now this appears to the Court extravagant, and represents a position that very wisely was not taken by Heteraka's counsel.
He tells us in another place of Te Hehewa having held Taurarua with his Waiohua, and having evacuated it and handed it over to Ngatiwhanaunga.
In either case, the question occurs to my mind what became of the defenders—whoever they were—when Ngatiwhatua assaulted the place and killed all the inhabitants?
How far did the Waiohua estate extend?—It went to Wakatiwai and on to Cape Colville
And then he stated that he had made no appearance at the Land Courts recently held at Kauaeranga. It appears that Ngatipaoa are not as ready to admit the Waiohua title to the Thames country as they are to the more westerly portion of the estate as described by Heteraka. He then goes on: " The Waiohua estate goes north to the Wairoa at Tauranga, and south to Patetere on the Waikato river. The Waitaha and Ngariki come into that." And in reply to the question, "Why don't you occupy that estate?" he says, "The original inhabitants were slaughtered and the intruders kept possession. I am the real owner. I am the only Ngatitai left."page 91
It would be very difficult to reinstate Heteraka in these dormant rights.
Who is the true representative of Ngaiwi now alive?—Te Hapimana, Keteraka, and the children of Isaac. Paerimu would represent Ngaiwi equally with Te Hapimana.
But Paerimu is admitted by himself to be a Waiohua, and by all Apihai's witnesses to be the true representative of the people originally conquered by Te Taou.
Did you not say at the previous trial that you were a Ngaiwi?—I said so.
Who built Taurarua Pa?—Rangikaketu and Te Hehewa.
Did Te Hehewa live there?—Yes.
Why did he leave it?—He left it, and gave it to Ngatiwhanaunga with the land. The pa was attacked. It was attacked by Ngapuhi, and by no one else.
Mr. Gillies admitted that Ngatiwhanaunga had no ground of claim superior to or different from that of the other Thames tribes; and all the Thames witnesses, as well as Heteraka himself in another place, said that the "take" was the same, and their claims were all equal. In setting forth an attack on Taurarua by Ngapuhi, and concealing that by Ngatiwhatua, Heteraka tells us of an event which is nowhere else disclosed, and ignores another about which there is no doubt.
You said you were living at Orakei before Koperu's attack?—I lived there from the time I was born until Koperu came.
Had you no other home all that time?—I used to reside there and at Mauinaina Pa.
He here forgets his previous statement that he was living at Kaipara with his mother from the time she was a young woman until she had become an old one.
What is the history of Ngatipaoa's ownership of Taurarua?— Waiohua ancestorship, and the conquest by Kapetawa.
Ngatipaoa being driven out of Waikato, was this by Te Waharoa? —I did not say they were driven off; we came quietly away.
I often wished, during the progress of the trial, that there had been a jury, so that the Court might have been relieved of that part of their duty which is comprised in determining facts, and judging of the credibility of witnesses; but, having to perform this function, I ought to express that the Assessor felt equally with myself that Heteraka's evidence made on our minds an unsatisfactory impression.
The question of Heteraka's ancestry, as set forth in his genealogical table, has already been partially dealt with.
The Court is of opinion that his pedigree is in no way connected with any tribe who ever held possession of this land, or of any part of Tamaki on this side of the river. It is the pedigree of Ngatitai, Ngatipoataniwha, Ngatikahu, and partially of the Thames tribes. It will serve to explain the connection existing between Heteraka and those tribes, but is of no other value, as far as this case is concerned. Mr. Gillies urged the Court to disregard pedigrees; and I cannot but page 92think that this was the wisest course to.pursue regarding the interests of his clients.
The question as to whether Heteraka is a representative of Te Waiohua at all is very doubtful. Many witnesses say that he is, and that Rangikaketu was a Waiohua—some of them entitled to great credit in matters of this sort, such as Paora Te Iwi;—but others assert in a very decided manner, that he has no claim to be so considered— that he is a Ngatitai, Ngatikahu, and Ngatipoataniwha, and nothing else. It will be remembered how his father, grandfather, and greatgrandfather had been described as each of a different tribe; and Warena Hengia put down Purehurehu as a Ngatikohua, a tribe not mentioned by any one else except Heteraka himself. Watarawhi says, "1 say distinctly that Heteraka is not a Waiohua/' and Keene Tangaroa, an old chief of Ngatikahu and Ngatipoataniwha, Heteraka's admitted tribes, says, "Heteraka is not a Waiohua." I think the truth lies between them. Te Rangikaketu was, in the judgment of the Court, a chief of Ngatitai, perhaps the principal chief, and also of Ngatikahu and Ngatipoataniwha; and there is evidence enough to make us incline to the belief that at the time of Kiwi, his tribe had already been conquered by Ngatipaoa, and that he was living with a few followers with Kiwi in the character of a refugee, well and courteously treated, and still regarded as a chief but that he was not a member of Te Waiohua, nor connected with them, except so far as Ngaoho (in which name Ngatikahu would be included), Nga; wi, and Waiohua are all connected together. But his son, Te Hehewa, seems to have married into the tribe. His wives were Huiatara of the Ngatikohua, a hapu of Te Waiohua, and Teke, another Waiohua woman. This fact will explain what Warenga Hengia meant when he called Heteraka a Ngatikohua from his grandmother's tribe, and this connection will entitle him to be considered a Waiohua, but she must have been a slave or a refugee, if alive at the time of the invasion of Te Taou, or the offspring of one if bom afterwards. Te Rangikaketu disappears after the conquest, except in Heteraka's evidence, who makes him to be still living in a pa at Mount Eden, and building another at Taurarua. But we do not believe this statement. We think that he fled with the other surviving friends of Kiwi, and that he went to his relatives the Ngatipaoa, and remained with them. Te Hehewa also, with his Waiohua wife, took up his abode with that tribe, and we accordingly find him actively engaged on their side at the battle of Orohe. It is not difficult to understand why no title is founded on this Waiohua marriage, though, if his grandmother was a woman of rank, and Heteraka and his grandmother and father had remained with the conquerors, and been admitted into their tribe, he might—especially after Purehurehu's Ngatiwhatua marriage—be entitled to be considered an "Uringutu." This course was not taken, however. They cast in their lot with Ngatipaoa, and never appear to have resided away from them, except during Purehurehu's courtship, and some few years after his marriage in Kaipara. From that time to the present, with the exception of page 93the two short intervals hereafter mentioned, the family have continued with Ngatipaoa. Even if Rangikaketu were a Waiohua, he must have shared the fate of that people. He seems to have escaped with his life, and so far had a better lot than his friend Kiwi; but nothing else seems to have been left to him, as far as the Court can discover.
Heteraka's claim by conquest is clearly absurd. He is not a descendant, according to his own showing, from Kapetawa; and, even if he were, it would avail nothing, for that was not conquest, as previously shown.
The occupation of Okahu by himself and his father was of no more significant a character, as far as this case is concerned, than that of Ngatipaoa; and the "take" failing, the occupation, such as it was, must be unproductive of result. Indeed, his occupation would be less significant than that of Ngatipaoa, for the family would have a right to cultivate, according to Maori custorn, on Ngatiwhatua land, so long as they did not annex themselves to a strange tribe, though no longer; and no doubt Apihai could extend this right over his own lands to his Ngatiwhatua friends, as, indeed, we see he has extensively done.
After the time of the English sovereignty, Heteraka came again, in Governor Hobson's time, and remained three weeks with Te Tinana, living in a tent made of a sail. He came again in Governor Grey's time and planted one season. Warena tells us that the produce left for sale to the townspeople was one basketful of potatoes.
When Tauoma was sold by Ngatipaoa they gave Heteraka three greenstones, and that is all he ever received from the sale of land by that tribe. Even when they sold his ancestral territory—from Takapuna to Te Arai—they gave him nothing; so he sold it over again himself—which seems to have been the usual and correct thing to do. It is very remarkable that in all the land transactions by Ngatipaoa from Te Whau to Taurarua, Tauoma, and north of Takapuna, Ngatipaoa never consulted Heteraka. When asked about these sales himself his answer is always the same—"I was at the Thames." It. was not until these trials that the Thames tribes appear to have discovered that Heteraka was the true owner of the country, and that they were "behind his back." He was never dealt with at all by the Government for lands south of Waitemata, though his title to the North was recognised. And the important fact is this, that he never remonstrated with the Government about the Ngatipaoa selling his land from under him except as regards that on the north of the river Waitemata
Much was made of a greenstone slab called Whakarewhatahuna, which it was alleged carried with it the "mana" of Tamaki, and possession of it was evidence of the ownership of the land. It appeared that this greenstone was used as a gong in Kiwi's pa at One-tree Hill. It occurs to me that this gong must have belonged to the chief and people of that pa, with whom Heteraka disclaims any connection. But, disregarding that point, I never in my experience in this Court heard of such an evidence of title being page 94brought forward, and should be very reluctant to admit a principle which, would be so very unsafe as a guide, and so liable to abuse as a document which carries with it no intrinsic evidence, and which must depend for its force, and even its character and interpretation, on oral testimony and tradition. But the necessity to decide this point does not arise. It belonged, Heteraka tells us, to Teke, a wife of Te Hehewa. She was the last person seen with it, and she hid it— Heteraka does not know where. So that Heteraka has not the possession of this document, and it cannot be produced, nor does Heteraka appear to be entitled to the possession of it, for the woman Teke was not his grandmother, but another wife of Te Hehewa's. However, it was buried last century, and with it must be taken to be buried whatever "mana" it possessed. Nor do we hold that the title to Tamaki will be revived for the benefit of the person who may happen hereafter to find it as Kahotea was found.
The newspaper correspondence is not before the Court, and the interviews with Mr. De Thierry and others resulting from that correspondence do not, in our judgment, affect the aspect of the title as it was before that period. The evidence as to what passed is conflicting. The jealousy which is still evident between the pure Taou and the Ngaoho, and more markedly the Uringutu, appears to have been more demonstrative then than at any other time, and it was fostered by Mr. De Thierry; but we do not think that any concessions were made by Mr. MacCormick's clients. Where the accounts differ, we prefer that of the claimants; and we hold that no alteration in the status of the parties could have been then made, except by voluntary and mutual agreement, and certainly no such agreement took place.
The Court quite agrees with Mr. Gillies that Heteraka has kept his claim alive. And we also concur that the Court should "imagine itself to be sitting in 1841," and we have endeavoured to do so. Doubtless the 30 years' possession by Apihai must be allowed to have weight, but principally because we find tha t it has been, undisputed except by Heteraka, whose right to dispute has been considered, and because we find that that possession was founded on anterior rights which have never been overtly questioned until now (except as abovenamed by Heteraka). We can easily imagine cases where equally undisturbed possession for an equally long period would avail nothing in this Court, where there is nothing on which it is based; and we have even such cases appearing in this trial, where indeed no claim is urged; as, for example, Te Hapimana and Te Keene Tangaroa. It would be a very dangerous doctrine for this Court to sanction that a title to native lands can be created by occupation since the establishment of English sovereignty, and professedly of' English law, for we should then be declaring that those tribes who had not broken the law by using force in expelling squatters on their lands, must be deprived "pro tanto" of their rights. The precedents are all the other way, and are founded in reason. And as no Court existed in the country by which such trespasses could be tried and the true owner-page 95ship of land ascertained, a peaceful protest against the occupation, or an assertion of a hostile or concurrent right made at a sufficiently early period, must be held to have been all that the counter-claimant was. required to do to keep alive his rights, and indeed all that he lawfully could do.
But giving Heteraka the full benefit of this doctrine, and imagining ourselves to be sitting in 1841, we think that his case would be no stronger then than it is now. In fact, the Court is of opinion that he never had any title to or interest in this land, nor even a "scintilla juris;" and that he has no more now. His claim is therefore dismissed both as concerns himself and all who claim by, with, or under him.