The Pamphlet Collection of Sir Robert Stout: Volume 30
[3. Tauranga, August 14 to November 13—92 days]
3. Tauranga, August 14 to November 13—92 days—1 certificate ordered (appealed, against and rehearing ordered).
The Maketu Court closed on the afternoon of the 12th. The Tauranga Court opened on the morning of the 14th. No time was lost. I presided at Tauranga 21 days. Not 92 days as stated by Judge Fenton in his return and before the Public Petitions Committee. The days I sat were from 14th to 21st August, from 23rd August to 9th September inclusive; also, 19th September. Total, 21 days, excluding Sundays. The Commissioner's Court sat at Tauranga on 22nd August, and from 10th to 18th September inclusive; also, from 25th September to 7th October inclusive. On the 13th October I was summoned to "Wellington to give evidence before the Native Affairs Committee re Government purchase of blocks Parenungahua, Ngatawakawaka and Matatuotonga. I returned to Tauranga in the beginning of November.
Meanwhile, Judge Symonds held a Native Land Court at Tauranga for Te Puke block, the whole period of which is included within these 92 days, viz., from 15th October to 13th November inclusive. The minute books of the Native Land Court for Wellington and Tauranga, and the Assessors Leaf, and Peti, who sat with Judge Symonds and myself, one at Tauranga, the other at Wellington (for as will be seen immediately, I held a Court while at Wellington) can prove the false character of this item in No. 80/2411. The Court Judge Symonds held was proclaimed in "Gazette" No. 32, page 139, 1878. The steamer that brought Judge Symonds to Tauranga took me on to Wellington with my staff.
At this Tauranga Court, Rau o te Huia, begun at Maketu, was finished, and the certificate ordered. Succession orders, 13; withdrawn, 2; adjourned on application, 4; dismissed because already adjudicated, 1: dismissed, no surveys, no jurisdiction, 29. Total in 21 days, 54 cases, being all upon a page 28 list of which it is noteworthy, as showing how the same had been arranged for me as the presiding judge, that it contained about a dozen blocks for adjudication, not one that was native land within the jurisdiction of the Court. Judge Fenton knew when he presented the return 80/2411 under remark to Government that Judge Symonds had presided at Tauranga, and that I was presiding at Wellington within the 92 days, but he concealed this, as I shall presently shew, by omitting the date of the opening of Wellington Court in the next item. See also Mr Sheehan's telegram to Judge Fenton, Auckland.
"28th October, 1878.
"Wilson will leave for Tauranga on Wednesday, &c., &c."
He also knew that I was sitting in the Commissioner's Court within the 92 days. See telegram 11th September, 1878.
"Judge Wilson to Chief Judge Fenton.
"Re your telegram yesterday will reply at length in writing. Meanwhile I will try Mr. Willcocks as an interpreter in the Commission Court now silting every day."
Again letter 14th September.
"Judge Wilson to Judge Fenton.
"I wish to keep Mr. Willcocks and Mr. Wilson, one as clerk, the other as interpreter and clerk out of session. By such arrangement I could continue my efforts without stoppage. The Native Land Court and Tauranga District Commission Court would each be in efficient working order. Any other condition is, of course, useless."
The receipt of this was acknowledged.
This Tauranga Land Court, of 14th August, 1878, had no surveyed blocks of Native Land notified for hearing. All the blocks advertised to be taken were within the confiscated territory. Either of these conditions, as the law stood, was sufficient to debar the Court from adjudication. The same, with one exception, Whangaparaoa, was the case with all the blocks gazetted for the Opotiki Court of August, 1879. The authors of J. 80/2411 arranged the lists of these two Courts; gazetted them in an unbearable state; and then made it a page 29 charge against their victim that the cases had not been heard; whereas had he heard them he would have been accused of habitually breaking the law while sitting in Court professing to administer it. However, I had adjourned a case from Maketu, which I finished at Tauranga, occupying about 7 of the 21 days I sat there. The rest of the time was taken up with overcoming difficulties interposed by some of the natives who were obstructive; in adjudicating succession cases, some of them very complicated, re title, through the action of Government since the confiscation of the Tauranga district. Tahawai 13 and 14, took two days. See remarks of the Court in dismissing the case, showing the legal title and the equitable title to be vested in different parties; and partly, perhaps, in overcoming my own inexperience as a Judge, for I was not permitted to have a colleague, as is the custom when a Judge of the Native Land Court is sitting in session for the first time. Although absent 3 weeks on the "Wellington trip, yet I am placed by Judge Fenton in his return as being at Tauranga during that time doing nothing, and this when he was exchanging telegrams with me at Wellington re the employment of an interpreter at the Wellington Court, when he had directed me to hold the Court there, and I had reported to him the cases disposed of at that Court; when, moreover, Judge Symonds was at Tauranga by his direction holding Te Puke Court. The return suppresses the greater portion of my work performed in 21 days, not 92 days, as erroneously stated. It does not show that the list of cases gazetted had been disposed of as far as was possible, notwithstanding that when the return was compiled all particulars were at his hand in the minute book of the Court. It debits me with the whole time—30 days—occupied by Judge Symonds' Court at Tauranga, I being absent before the Parliamentary Committee; and debits me with 31 days of the 92 days, during which I was in the Commissioner's Court, or doing duty pertaining thereto, when no Native Land Court was sitting at Taurangs at all. And all this falsehood is officially perpetrated to my injury by a functionary, the very essence of whose high office is to act truthfully and justly.
In accordance with the tenor and object of J. 80/2411, marked stress is laid upon ("appealed against and rehearing ordered"). The memorandum following will shew whether a rehearing should have been granted. It is in reply page 30 to Judge Fenton's usual minute referring the petition of appeal to the presiding Judge.
"The hearing of Rau o te Huia occupied eleven days. There were sis counter claimants, of whom the representatives of Ngatikereru are to be considered as one. Before the case came before me, Te Rau o te Hum bad been overlapped by Kaikokopu, Paengaroa, and "Waitepuia, from each of which it had been cut off and eliminated at the hearing by the presiding Judge as an element of discord. The Ngatikereru claim and survey of Waitepuia overlapped Te Rau o te Huia largely. This overlap is the land in respect of which the two Ngatikereru petitions now under remark have been sent to you. "When Judge Heale heard Waitepuia at Maketu, he took the inquiry to include the 'overlap,' but he excluded the 'overlap' from his judgment in as far as making an award was concerned. His judgment contains the following passage: 'The only piece in dispute is the southern portion which is included in Te Rau o te Huia claim. About this piece the most contradictory evidence has been given; one party asserting that they had potato cultivations in several parts of it between the years 1862 and 1868, while the other asserts that there were never any cultivations upon it. As many persons present were living in Maketu at that time, and as the land was very near the road to the lakes, it seems to the Court if there had been cultivations there would certainly have been other evidence of their existence than that of the party himself who claims the land. The Court therefore is quite unable to affirm that this piece belongs to, or has been cultivated by Ngatikereru, and it can only give judgment for the northern piece." In this condition, and as an apple of discord, the land came into my Court. One of the first points raised by the claimants, Aporo and others, was that Ngatikereru were already out of Court by virtue of Judge Heale's decision in Waitepuia. To this I ruled that Rau o te Huia was before the Court 'de novo.' After a very patient hearing, my Court arrived at the following conclusion re the Ngatikereru claim to Te Rau o te Huia, viz.: "The Court is of opinion that the Ngatikereru claimants have failed to establish a right to any portion of Rau o te Huia whether by possession, cultivation, or other mark and exercise of ownership." There was no difference of opinion between the Assessor and myself on this matter, nor were we at all doubtful, the evidence, both page 31 European and Native, being sufficient and clear. From the foregoing it will be seen that the Ngatikereru claim to Rau o te Huia has been twice heard with one result. . . —J. A. Wilson.
This is the claim that was recommended to the Governor for rehearing by Judge Fenton (no other was sent to me for remark as presiding Judge), on approval of which, instead of sending another judge, I was directed to re-hear my own decision, my mind being influenced by the impression created at the recent trial.