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The Pamphlet Collection of Sir Robert Stout: Volume 70

The Omahu Case

page 22

The Omahu Case.

Yesterday the Native Land Court at Hastings save the following decision in the Omahm re bearing case—Since the Court adjourned on the 17th March last we have carefully gone through the whole of the evidence that has been laid before us, and have endeavored to extract from it such portions as appear to us to be trustworthy and material to the history of this case. In view of the numerous contradictions and discrepancies that we find, not only in the evidence of different witnesses, but often in the evidence of the same witness in different portions of his or her Antimony, we have come to the conclusion that only a few small fragments of genuine history have been preserved, and that the greater part of the story that has been laid before us is either the result of ingenious invention, or of the unconscious change which necessarily takes place in the handing on of tradition from mouth to mouth, especially where the remembrance of the real facts has been hazy.

In tracing the history of this block we consider it unnecessary to decide whether Taraha I conquered the land or not; there is a general agreement that in some way or other he gained a footing there—whether by force or by some friendly arraugemeut is immaterial—and the position so acquired either amounted to ownership, or had ripened into ownership, in the time of bis grandson, Taraia II. It appears also that whatever interest Taraia I. may have acquired he enjoyed it in conjunction with, and not to the exclusion of, Ngati Whaturnamoa, who intermarried with his children and descendants, and continued to exercise rights of ownership over this land until the separation which occurred in the time of Taraia II. Whatever the actual occurrence which has been called the conquest of Taraia If may have been—and there is a considerable discrepancy in the different accounts—the course of subsequent events seems to establish the fact that those members of the Ngati Whaturnamoa who were not descended from Taraia by reason of the intermarriages, left the land in the undisturbed possession of the descendants of Taraia I., and thus any right derived from Turauwha as distinct from that derived from Taraia I. became extinguished. Claims are put forward on behalf of four of Taraia I.'s grandchildren, viz., Huhuti, Taraia II., Hinehore, and Hikateko. With regard to Huhutl, we consider it unnecessary to decide whether her marriage with Whatuiapiti affected her rights in the land now before us. The return of Hikawera in our opinion revived her rights, even if they were in danger of extinction by Teason of her absence. We do not regard the alleged extinction of the rights of Hinehore and Hikateko as established. We are therefore of opinion that [unclear: the] ancestors—Hikawera, Taraia II [unclear: tiore], and Hikateko—constitute [unclear: ke tupuna] to this land.

We now come to the time of Rangikamaustuogu, Hawera, and Namairangi, all of whom were found exercising rights of ownership upon the land in question. We think that all of them had some ancestral right, and the fact of their tracing descent from the common ancestor seems to us sufficient explanation of the acts of ownership which we have no doubt they performed.

As to the alleged gift of Tuku, we think it probable that some gift was made by Hinehine-Ariki to Rangikamangungu, in accordance with the dying request of her father, but we are unable to accept that version of the story according to which the ownership of the land was vested entirely in Rangikamangungu, and all the other previous owners excluded from participation. If anything passed to Rangikamangungu by virtue of that gift it was Tuku's interest, and Tuku's interest alone. The interests of the other owners remained unchanged. We think also that the theory that some part of this land was vested in Hawea by reason of the shedding of his blood, although ingenious, is untenable. It seems to us also highly improbable that this land was placed under any tapu in consequence of that shedding of blood. We can find no intelligible reason why any part of the Omahu block should be subjected to a tapu on that account. The use that was afterwards made of the land by the several owners seems to us inconsistent with the existence of such tapu, and we have no record of any purifying ceremony by which the tapu was removed. The right of Hawea we consider therefore to be, like the right of Rangikamangungu, derived from his ancestors.

We are satisfied that both these ancestors made use of the land as owners, and we think their descent from the previous owners is amply sufficient to account for the use that they made. At the same time we are of opinion that their ownership was not exclusive. We find that Mamairangi and others associated with him also made use of this land, as we believe in exercise of their rights as owners. The gift alleged to have been made by Hawea to Tuhotoariki has not been established to our satisfaction. Tuhotoarika appears to have had an ancestral right, and we do not find that he was ever deprived of it.

The affair of the Paratuna does not commend itself to oar mind as the result of a breaking of tapu or an attempt to take violent possession of the land by force of arms. It seems rather to have been a scuffle, probably occasioned by the desire on the one hand to poach on the Rotoroa eel-weirs, which was resisted on the other band by the owners of those weirs, who would not consent to them being regarded as common property.

page 23

We are unable to find that any change of ownership was effected from that time down to the expulsion of Ngati Upokoire from the district in consequence of their defeat at Rotoatara, That they were defeated, and in consequence dispersed, we find to be fully established, and we are of opinion that whatever rights they may have possessed as owners of this land before their defeat ceased to exist, and that until their return they cannot be said to have had any right there at all.

If it were the duty of the Court to imagine itself sitting in the year 1840, immediately after the introduction of the British Government into the colony, we should have to pome to the conclusion that the Ngaiteupokoiri were not owners of this land. But we think also that if we were placed under the necessity we should also he obliged to find that no natives had any beneficial interests in this land at that time, and it the strict interpretation of the so called rule of 1840 were insisted upon the experience of the present members of the Court leads us to believe that a very large area of the land in the North Island would be found to be without a native owner. Apart from the inherent difficulty of imagining ourselves in 1892 as sitting in 1841, it would be necessary to introduce so many other fictitious elements that no satisfactory result could be arrived at. But when the various statements of the so-called rule of 1840 are looked into it is clear that the Court never intended to lay down any rule which would be productive of so much injustice to native owners as so strict an interpretation would lead to. We accept the rule as laid down in the Oakura case as containing all the qualifications to which every rule of the kind must be subject, that are necessary to enable us to do what we believe to be substantial justice in this case, and we have no intention of restricting or extending the rule beyond what is there laid down. Adopting that rule as our guide, we are of opinion that when the Ngaiteupokoiri returned to this land, as they did in consequence of a general invitation communicated to them by Te Moananui, they returned to and re-acquired all their ancient rights and no further rights. Although many witnesses have deposed to the fact that Otupaopao was mentioned at the meeting between Te Moananui and Ngaiteupokoiri at Manawatu, we are of opinion that no gift of any portion of this land was made, or intended to be made, to the Ngaiteupokoiri. We have therefore to determine what rights the Ngaiteupokoiri possessed before they left, and whatever they are found to be we consider them to be the rights which they still retain.

A great many different boundaries have been deposed to as having been laid down at one time or another for the purpose of dividing the interests of the several parties of owners. But we are of opinion that none of them have been observed in such a manner as to enable us to look upon them as existing boundaries at the present time. The land, so far as we can see, was common property, and used in common by all as occasion required. We find, however, that Rangikamangnugu and Hawea are most closely identified with the northern and eastern portions of the land, and Te Uamairangi and Ngaiteupokoiri generally with the southern and western parts. We do not find that there was at any time a definite boundary between them. The exigencies of this case, however, demand that the Court shall draw one or more dividing lines between the several parties, and before the final orders are made it is our intention to exercise the powers which the Native Land Court Act, 1886, imposes upon us of dividing the land into two or more parts. How many divisions we ought to make, and what dividing lines we ought to adopt, must depend upon the number of persons who are ultimately found entitled, But as we consider that there is no ancestral line that can guide us in coming to a decision, we shall have to make such divisions as seem to us most in accordance with the interests of justice and conducive to the good order of the community general y. We reserve that question, howevver, [unclear: until] all the lists of names have been finally passed.

We have so far been dealing with the two main parties to this case—those iepretended by Airini Toncre and Wiremu Paraotene, With regard to the claim of Wiramina Ngahuka, as we have already impressed the opinion that no claim derived from Turawha has been established, we roust reject her claim under that ancestor. We think, however, so far as her ancestry is concerned, that she has an ancestral claim under Hikateko.

With regard to Matenga Pekapeka we are of opinion that the evidence he has brought forward is insufficient to establish a right to be included under Te Rangikamangnugu.

We are of opinion that Paora Kaiwhata has failed to establish a special claim to the 100 acres claimed by him. We also think that Hamona [unclear: Tiakiwai] has failed to establish his special claim.

We reserve all the other cases, including the claim of Matenga Pekapeka and Ngaiteupokoiri, until the lists of names come before us for consideration.

It will, of course, bo understood that we do not necessarily exclude them from participation in the shares awarded under the several take which we hold to be established. We reserve that question until the lists of names are under revision.

The lists which are attached to this judgment contain the names of all the persons on whose behalf a claim has been made under one or other of the take last mentioned. They are provisional only, and subject to be amended in such manner as may seem right after objec tions have been heard. No final order will be made until we have determined in what way the land ought to be divided.