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The Pamphlet Collection of Sir Robert Stout: Volume 70

[Notes on the Native Land Acts]

The law specially relating to Maoris and Maori land is at present embodied in many acts with their amendments, and the rules made under them.

It is admitted on all hands that these acts, amendments, and rules are a patchwork—cumbrous, incongruous, anomalous, and inconsistent to a degree that renders it practically impossible for any human being to perfectly reconcile or understand them, or act judiciously, or even safely, under them.

That the existing "Native Land Laws" are really incapable of being perfectly understood or administered is proved by the fact that, except as between Maoris and Maoris for the ascertainment of title "according to Maori custom," it is nearly or quite impossible to obtain from the Native Land Court any important order, judgment, or decision without opening a door to expensive litigation in the Supreme Court, and judges of the Supreme Court have more than once or twice expressed extreme dissatisfaction with the letter of the Native Land Laws as being practically unintelligible.

The urgent need, therefore, for consolidation or other radical amendment of these acts is undeniable; though there may be, and probably will be, much difference of opinion as to how they ought to be amended.

The Treaty of Waitangi (1840), prior to any legislation on the abject, provides, inter alia, that the Maoris may hold their land so long as they choose to do so "according to their own Maori custom"; but it has been said repeatedly, sometimes by high authority, that there is so much mystery about native land tenure, and that "Maori custom" in relation to land varies so very widely and irregularly in different districts and at different times, that ordinary Englishmen cannot understand it.

Mr. Alexander Mackay, now a Judge of the Native Land Court, compiled a Parliamentary paper, which was presented to both Houses in 1890. The paper is marked G. 1., and is entitled "Opinions of various authorities on Native tenure," and Mr. Mackay says that these "opinions" are "very conflicting"—as, indeed, they are.

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The effect of these "conflicting opinions" has been to cause Parliament from year to year to leave Native land legislation in a great measure to supposed "experts" and interested parties as being alone competent to deal with the subject, and hence a legislation of patchwork, according as one or another special interest prevailed among the "Maori doctors" and dealers in Maori land.

I, the writer of these notes, will not at present comment upon or criticise in detail the "conflicting opinions" compiled by Mr. Mackay, nor the "conclusions" he (Mr. Mackay) draws from them; but having had, in a lay capacity, an intimate acquaintance with Maoris and Maori businesses for fifty-three years. I desire to say once for all in the most earnest and explicit manna possible to me, that there is nothing whatever mysterious about native tenure, nor specially variable in Maori custom in relation to land; that, in short, there is nothing at all in relation to Maoris or Maori land which any ordinary Englishman, having nothing in view but fair and straightforward justice equally to Maoris and to colonists, cannot easily understand if he chooses to give a little time and thought to the matter, and this I humbly conceive it is the plain and express duty of our members of Parliament jointly and severally to do.

But, as I have said, in order readily to understand "Maori custom" it is a sine qua non that the enquirer has no particular axe to grind, and desires only right and justice to all parties concerned.

I hope, therefore, that in any attempt now to be made to consolidate or amend the Native Land Laws the present Government and Parliament will dismiss from their minds all and every idea that there is anything occult or mysterious or very difficult to be understood about Maoris in relation to the land, or in their "customs" in dealing with it. I would at the same time earnestly caution the Native Minister against plunging headlong into the existing chaos of Native Land Acts, rules, and litigation with a view to pruning and weeding the tangled mass. I would, on the other hand, confidently recommend him to dig down to the very root or commencement of our official dealing with the Maori people. I am certain that he will there find clues and [unclear: thrai] which will, aided by ordinary English common sense, guide [unclear: hia] to an entirely successful issue; that is to say, to the framing of laws or acts which will in due time issue in satisfaction, [unclear: peace] and justice alike to Maoris and to colonists.

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The salient points having special reference to Maoris in the earlier history of New Zealand as an English colony, to which, in my humble opinion, the attention of the Government and Parliament should be directed in view of a consolidation and amendment of Native Land Laws, are:

I. The Treaty of Waitangi.

By this so-called Treaty it appears to be recognised that the Maori people consists of and includes "chiefs," "tribes," "families," and "individuals" of the Maori race, and Her Majesty guarantees to them and to each of the parties the full and free possession of the land of New Zealand so long as they choose to hold it under or "according to their own Maori custom." They, the said chiefs, tribes, families, and individuals of the Maori race agree on the other hand to alienate land only to Her Majesty.

That constituted, as regards the land, the first position, and it endured from 1840 to 1862-8.

During these twenty-two or twenty-three years large blocks of land in different parts of the country were acquired from the Maoris by the Governor, presumably in accordance with the provisions of the Treaty of Waitangi.

But during these same twenty-two or twenty-three years many other very important events occurred, only a few of which, however, have a direct bearing on the Native Land Question.

Among these I will mention (2) settlement of colonists on the blocks of land which had been acquired as above from the Maoris; (8) a Constitution was granted by the Imperial Parliament to New Zealand, but excluding interference with Maoris or Maori affairs; (4) There was a natural urgency or pressure of colonists exerted upon the Governor, representing Her Majesty, to acquire more and more land for colonisation; (5) The Governor was brought face to face with the question of "individual" rights or title to land "according to Maori custom" as supposed to be distinguishable from "tribal" or "family" right to land according to the same custom.

This question proved to be, and still is, of far greater importance than perhaps many people think, and I hope the Native Minister will now carefully consider it.

The question arose in 1860 upon the occasion of the proposed purchase of 600 acres at Waitara by the Governor from one Te Teira, a Maori, opposed by another Maori, Wiremu Kingi, said to be the "chief" of the "tribe" of which both he and Te Teira were members.

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This was an entirely new question in New Zealand, at least so far as the colonists knew or were concerned.

The floods and torrents of speaking and writing that ensued throughout New Zealand on the [unclear: coneequonce] of this question was amazing, and was in the proportion of one drop of common [unclear: sense] to a sea of slops, with a spoonful of learned lore about various European species of tenure, which, being entirely beside the question, was simply rubbish.

The fact that all argument on the point, whether wise or foolish, or worse than foolish, was pretty quickly extinguished by fierce war with all its terrible experiences is, of course, for ever to be deplored, but it is now our duty to look at the question with cooler heads and calmer minds, and see whether we cannot extract some practical benefit from it.

The question arose in 1859 and culminated in 1860, there being at that time no court in which such a question could be heard and determined.

Governor Browne, however, having, by such means as I suppose he thought sufficient, satisfied himself that he was right took military possession of the disputed 600 acres. A shot, which some say was accidental, was fired; anyhow there was a shot fired by some one, and we found ourselves at war.

I do not say that there was no other or deeper cause for the war than the mere dispute at Waitara; but that was the proximate and ostensible cause of the war.

Even then, after fierce fighting had taken place, the grand spirit of law and order was not wholly extinguished in New Zealand, and our Parliament spoke and said in effect, "Whatever else may be right or wrong as between Her Majesty and the Maoris it is not right that there should be no proper Court of Justice before which such questions as that at Waitara between Wiremu Kingi and Te Teira could be settled peaceably," and accordingly (1862) we got our first "Native Land Act."

That Act, constituting a Native Land Court, could not come into operation until it received Her Majesty's express assent, which it did in 1863.

Now, this first Native Land Act deserves and should obtain careful study,

The question at issue in 1860 at Waitara was simply "tribal" or "family" right or title to land "according to the Maori custom" v. individual rights or title to land according to the same custom, and our Parliament, by that first Native Land Act, sett up a special Court in which that or any similar question might he determined, it being rightly or wrongly supposed that our ordinary English Courts were incompetent to do so.

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I think no one can say that Parliament was wrong in setting up that Court. I think, indeed, that every person of any and every reasonable party must say that Parliament was not only right in setting up a Court in which such disputes as between Maori and Maori could be equitably and peaceably determined, but that it was the clear and plain duty of Parliament to do so.

But, as I think, and as I believe many others think, unfortunately Parliament in passing that first Native Land Act went further than merely to set up a Court in which land disputes as between Maori and Maori could be properly determined. It relinquished the Queen's preemptive right to acquire any land the Maoris might be disposed to alienate, and Her Majesty acting upon what seemed to be the wish of the Colonial Parliament assented to the sacrifice.

Now, although it was a clear duty and necessity to set up a Court to determine questions as between Maori and Maori there does not seem to have been any occasion at all, or any right reason for giving up the preemptive rights of Her Majesty.

No Maoris had asked to have it done; the [unclear: colonials] as a body had not asked to have it done, nor had a majority or any considerable number of either race asked to have it done.

It was done simply at the joint instance of a spurious philantrophy and of an interested set or class of colonists to the direct disadvantage of the colonists as a body, and, as I believe, of the Maoris as a race.

However, it was done, and I do not know whether the deed can now be completely remedied.

But there are still several points about that first Native Land Act (1862) and its abandonment of the preemptive right to which I hope the Government will give attention, in view of the consolidation and amendment of the existing Native Land Acts.

The first and chief of these points is this, viz.: That there has never been any trouble whatever as to the work of the Native Land Courts in determining right and title to land "according to Maori custom" as between Maoris and Maoris, nor has there been from the first to last any necessity to amend the first Native Land Act in that respect, nor has it been materially amended in that respect.

Very nearly all, if not quite all the amendments and tinkering and patching of the Native Land Acts which in the last thirty years has resulted in the present chaos has been in the interests of, and in consequence of, the operations of private buyers and sellers of Native land consequent on the abandonment of the preemptive right. But upon [unclear: this] point I shall have more to say later on.

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In the meantime I desire to point out emphatically that as the Native Land Court never has had any difficulty in determining any and every question relating to land as between Maori and Maori, that fact affords conclusive evidence that all who have heard about the mystery and variableness of "Maori custom" is not true; or, at all events, that the Native Land Court has proved itself perfectly well able to cope with any question of that kind as between Maori and Maori, while all the trouble has been caused by the operations and requirements of the private buyers and sellers of Maori land.

I submit, therefore, that ordinary English members of Parliament need not on account of any supposed special mystery be deterred from giving due consideration to proposed Native Land Acts.

If, then, it be granted as I think it must be granted—(1) That as serious questions have arisen and continue to arise as between Maoris and Maoris, that is to say, as to which particular Maoris are exclusively entitled "according to Maori custom" to given parcels of land; and (2) As our ordinary English Courts are incompetent to hear and determine such questions; and (3) as the experience of the last thirty years proves that the Native Land Court is perfectly competent to determine such questions there ought to be no difficulty in enacting that the Native Land Court shall be continued and established for that purpose, but not necessarily for any purpose beyond that.

Our diffident members of Parliament who have been too modest to interfere with what they believed to be an occult and mysterious science known only to a few experts would thus be set entirely free from all consideration of "Maori custom," and would doubtless feel themselves able to give due consideration to the further questions touching the soil of New Zealand in which the colonists have, or ought to have by this time, some voice.

The first and most important of these further questions I conceive to be this, viz.: The particular and exclusive "owners according to native custom" of given areas of land having been ascertained by the Native Land Court, how can the vast tracts of land held by Maoris under that species of tenure be best brought into use in their own interests?

Now, I submit with complete diffidence, but with absolute conviction, that this question cannot now be, as it ought never to have been since 1840, considered at all, separately or as distinct from this other question, How can these vast tracts of land be best brought into use in the interests of New Zealand's people whether of one race or of more than one race?

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I do beg to state my most earnest and anxious conviction that if the past and present political and other unnecessary distinctions between Maoris and colonists are kept up for only a few more years, and the best interests of the Maoris continue to be thought separate and distinct from the best interests of the colonists, the ultimate end will be to convert this fair country into a hotbed of turmoil and litigation, if not of much worse than merely civil broil and commotion.

I hold it to be the duty of the colonists to be true and just, and even generous to the Maoris as to men weaker in some respects than themselves; but the Maoris are men, and though, as compared with the colonists, they are ignorant men, yet to treat them as a class essentially inferior or different to the colonists generally we shall find to have been a very great mistake.

The representatives of Her Majesty Queen Victoria in making in [unclear: 1640] a Treaty with the Maoris dealt with them as with men—and good men—and why should not we to-day do so?

I must not, however, in these notes on the Native Land Laws diverge into a rhapsody on the "rights of man."

I return to the particular question in hand.

There are great tracts of land in this country practically unoccupied.

This should not be allowed to continue. On enquiry we find that all we know about these great tracts of land is that they are, under the Treaty of Waitangi, "owned by Maoris according to their own custom," but by what particular persons of the Maori race any given area is so "owned" we do not know.

That should not be allowed to continue. It is necessary that this community by its constituted authorities should be enabled to know, when required, the personal owner of each and every acre in the country; and, accordingly, we have set up the Native Land Court to "ascertain" who are the particular "owners according to Maori custom" of given areas.

Having got thus far it might naturally be expected that the "owners according to Maori custom" being so "ascertained" would put their respective areas of land to good use; but what do we find?

I will not answer this question out of my own head, neither will I quote answers which have been given by private persons who could possibly be suspected of prejudice or bias one way or another, but I will cite the dictum of the Supreme Court of the colony to the effect, viz., that so far as English Courts of Law or page 8 Equity know, or are competent to determine, the rights or title to land "according to Maori custom," which by the Treaty of Waitangi is assured to the Maoris, does not imply or include a right to alienate any part of the land, or make any use whatever of it other than such use as the Maoris may be supposed to have made of it while they were yet wholly barbarians, except only, as provided in the Treaty of Waitangi, viz., by alienation or surrender of the land to Her Majesty.

Now, it cannot I think possibly be held by any one that it can be right, or that it can be in the true interests of any persons whomsoever, whether Maoris or otherwise, to leave these great tracts of land in that condition as to valid title.

The so-called philo-Maori, the spurious sentimentalist, the self-constituted friend of the Maoris, and the private trafficker in Maori land will no doubt join as heretofore in the cry "Oh, give the 'owners according to Maori custom,' as 'ascertained' by the Native Land Court, English titles and let them do as they like with their own." But the true friends of the Maoris and of humanity will say something very different.

Why should the Parliament of New Zealand give certain Maoris an English title in lieu of the title "according to Maori custom" which they at present possess?

I know that apart from the philo-Maoris and private traffickers in Maori land many ordinary colonists appear to think that if a Maori is entitled to land "according to Maori custom" he should be regarded as an "owner" in an English sense and should have an English title if he wants it. But I submit that such otherwise estimable colonists do not really think about the matter at all. Misled, perhaps, by the English word "owner" they take things for granted and jump to conclusions.

But the Native Land Court "ascertains" only that certain Maoris, including men, women, and children are the "owners according to Maori custom" of given areas of land, and our Supreme Court has declared that it has no means of determining what may or may not be the powers of "owners" under that species of tenure.

For whose benefit or advantage [unclear: it-is] now proposed to give to these "owners according to Maori custom" an English title? If the exchange of title is demanded by or on behalf of the "owners according to Maori custom" as a right, I am at present unable to see that any such "right" exists, and I absolutely deny that any such right does exist.

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Where does the alleged "rights" come from otherwise than as provided in the Treaty of Waitangi? And the provision [unclear: then] is not the issue of Crown Grants or Certificates under the Land Transfer Act, but simply and only the formal surrender of the land to Her Majesty, who will then, doubtless, fulfil to the letter all and every the particular terms upon which the land in any and every individval case shall have been surrendered.

If it be said that the change of title is necessary in the interests of New Zealand as a whole—Maoris and colonists alike—I say yes, certainly, but the exchange shall be made only on terms, precisely as the State graciously makes terms with any private citizen with whom it is desirable in the common interests to deal.

There are very many good reasons for looking at the matter as a mere matter of bargaining between parties.

I will mention only one reason, and I do so only to meet the gentle and otherwise loveable sentiment of many good persons who really think that it would be a graceful and generous act to bestow on the Maoris a definite English title in lieu of the indefinite and practically useless title "according to Maori custom "which they now have.

To such persons I say, with the most profound and sincere respect and honour, my friend be not hasty or indiscriminating in the bestowal of benefits and favours.

The Maori Chief is the most truly proud and haughty man in the world, not excepting the Spaniard or the Scotch Highlander.

No Maori chief (and every Maori like every Highlander is, in his own opinion, a gentleman) would ask for or expect anything for nothing.

No Maori would accept of a favour or gift unless he saw his way to make a return gift, probably different in kind, but of at least equal value.

To offer a gift or favour to a Maori, which it would be manifestly impossible for the recepient to adequately return (utu), would be simply an insult to be expiated by war. Such a gift could not be accepted without degradation; neither would it be offered by any Maori except for the express purpose of leading to the degradation of the recipients by a palpable exhibition of his want of power to adequately return the gift.

Therefore, my kind friends, take time, and consider before tendering your gifts to Maoris. Your really good, and, from an English point of view, most loveable intentions, maybe carried into practical effect without wounding the proper pride of the Maoris, viz., by the simple process of making a bargain with them—a straightforward and honest quid pro quo transaction.

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It would of course be very absurd for an obscure individual such as the writer of these notes to attempt or pretend to formulate in detail the terms of an equitable bargain as between "owners of land according to Maori custom" and the people of New Zealand represented by the Executive Government of the colony, but I will venture to indicate one or two general features which, in my humble opinion, ought to characterize any such bargain.

1. There [unclear: shall] not be in the Acts of Parliament or in the transaction any scrap or tincture of sentiment other than a purely straightforward quid pre quo feeling as between honest man and honest man who each has some desirable thing to exchange.

2. In any case in which a Maori or Maoris are actually occupying, in a civilized sense, any given area of land by right "according to Maori custom" without dispute among themselves and without objection from other Maoris, such persons should, I think, be treated by Parliament exactly in the same manner and not otherwise than any European owner or owners of a similar property, and in such case, as an encouragement to such Maoris to go on and prosper, they should, I think, be enabled to obtain English title if they want it in lieu of their existing title "according to Maori custom"—Parliament by Act to provide the process and the specific terms upon which the exchange of title could be effected.

3. In any case in which the owners according to Maori custom of any area of land are (a) too numerous to work the estate as a single property; (b) when the "owners according to Maori custom" include minors, or imbeciles or otherwise incapable persons; or (c) when from any cause whatever the property is not being used beneficially in a civilised sense in the equal interest of all the "owners according to Maori custom," any one or more of such owners, or His Excellenoy the Governor in the interests of all, should have power to take steps to bring the land into beneficial use, and Parliament, as part of the above-mentioned "bargain," should provide the process and set forth the steps by which such land should be brought into beneficial use.

If Parliament once gets the following half-dozen ideas on the subjects of Maoris and Maori land clearly into its mind, I have no fear but that we shall get satisfactory native land legislation:—
1.That it is not necessary to trouble or dispute as to what is or is not "Maori custom" in relation to land, because the Native Land Court has proved itself perfectly competent to determine any such question as between Maori and Maori.page 11
2.That right or title to land "according to Maori custom" does not necessarily, or so far as known to our Supreme Court, imply the right to alienate the land, and that consequently any and every alleged or proposed purchase of land held "according to Maori custom" is ab initio absolutely invalid, except as provided in the Treaty of Waitangi, to Her Majesty.
3.That neither the Treaty of Waitangi, nor any other obligation legal or moral, human or divine, imposes upon Her Majesty, or upon the Parliament or people of New Zealand, the duty of giving to any Maori or Maoris a title to land, other than "according to Maori custom" without consideration.
4.That the people of New Zealand are entitled to demand that all and every parcel of land shall be brought into beneficial use as speedily as conveniently as possible.
5.I venture also to think that the duty of the Native Land Court as such should be strictly limited to the determination of questions as between Maoris and Maoris.
6.And that it should be competent for the Governor, or for any Maori claiming an interest "according to Maori custom," to move the Native Land Court to action.

With the best and most sincere good wishes for the success of any Native Minister and Government who honestly and strenuously undertakes the amendment of the existing Native Land Laws,

I am always,

A. McDonald.