The Pamphlet Collection of Sir Robert Stout: Volume 72
To the Honourable the Speaker and Members of the House of Representatives in Parliament Assembled
To the Honourable the Speaker and Members of the House of Representatives in Parliament Assembled.
The Humble Petition of Meiha Keepa Te Rangihiwinui (commonly known as Major Kemp), a Native Chief of the Wanganui and Manawatu Districts.
1. That on the 10th day of April, 1873, an order was duly made by the Native Land Court, under the provisions of "The Native Lands Act, 1865," and "The Native Lands Act, 1867," for the issue of a Certificate of Title in favour of Meiha Keepa Te Eangihiwinui (commonly known and hereinafter referred to as Major Kemp) under the 17th section of "The Native Lands Act, 1867," for a block of land at Horowhenua, in the District of Manawatu, in the Provincial District of Wellington, containing 52,460 acres, more or less; and that on the same day an order was made, pursuant to the provisions of the said 17th section of "The Native Lands Act, 1867," for the registration in the said Court of the names of 148 aboriginal natives of New Zealand, as the owners of the said land. The finding of the said Court on which these orders were based was that the Muaupoko tribe was entitled to this land, and the list of owners was intended to include all the members of the Muaupoko tribe so entitled. On the 27th June, 1881, a Certificate of Title, under the provisions of the said 17th section of "The Native Lands Act, 1867," was, pursuant to the said orders, duly issued by the Native Land Court, under the seal of the Court and under the hand of the Chief Judge thereof, in favour of Major Kemp for the said block of land, the effect thereof being to constitute him a trustee for the owners whose names had been registered in the Court as aforesaid.
2. In the month of November, 1886, the said Native Land Court sat at Palmerston North for the purpose of partitioning the said block of land, upon the application of your petitioner, Major Kemp; and the Court, in the said proceedings, purported to act under the provisions page 4 of "The Native Lands Acts," "The Native Land Court Act, 1880," and "The Native Land Division Act, 1882."
3. On the 25th of November three Division Orders were made by the said Court, with the unanimous consent of the owners then present in Court.
4. On the 1st of December other Division Orders were made, by general consent, the result being that all the persons named in the Native Land Court Certificate of Title as owners received on partition some portion of the said block of land in their own right. But all the portions so awarded in severalty were covered with bush, and had never been actually occupied or resided on by the Muaupoko tribe.
5. The effect of the partition among the owners, so far as it had now been carried, was to leave the residential portion of the block, called Horowhenua No. II., containing 14,975 acres, and including the whole of the Horowhenua Lake, quite intact.
6. The tribe, having determined to keep this portion of the estate unbroken as a permanent home for the people, declined to have the partition carried any further, and moved the Court to order a Certificate of Title for the same, as before, in the name of your petitioner, Major Kemp.
7. At this stage of the proceedings, Wirihana Hunia, one of the registered owners, came forward as representing the Hunia family, and objected to the order being in the name of Major Kemp alone, After a short retirement from the Court for consultation, Major Kemp agreed to admit the name of Warena Hunia (Wirihana's younger brother) as co-trustee with himself, and he then applied to the Court to join Warena Hunia with him in the order, which was done accordingly, there being no dissentient.
8. In giving his consent to the introduction of Warena Hunia's name, your petitioner understood that he was consenting to have a joint trustee with himself in the management of the estate for the benefit of the tribe to whom it of right belonged; and that was the universal belief among the owners then present in Court, who permitted the arrangement to be recorded unchallenged.
9. After the Division Orders hereinbefore mentioned had been made, a survey of the block was made and a proper plan of the subdivision prepared for the Court; after which certificates of title were ordered to be issued in conformity with the provisions of the Land Transfer Act.
10. In the month of February, 1890, a sitting of the Native Land Court was held at Palmerston North for the purpose of further partitioning the said parcel of land known as Horowhenua No. II. between Major Kemp and Warena Hunia, upon the application of the latter. It then became known to your petitioner and his people that by a fiction of law, the land had become the absolute property of the two persons named in the certificate of title, and was unconditionally at their disposal as in their own right.page 5
11. The Muaupoko tribe, who all along fully understood and believed that their interest in the said block of land was held by Major Kemp and Warena Hunia, in trust, now discovered that without any intentional consent on their part, the whole estate had passed in law to the two persons named in the order of the Court, and that their ancestral home on which most of them had been born—their houses, their cultivations, their burial-places, and their lake-fishing grounds—bad passed away from them for ever! No warning had been given to them in Court that the effect of the order to be made would be to divest the said lands from the acknowledged owners, or that it was necessary or desirable that the trusts under which the said lands were held should be in any way declared or protected. Indeed there is reason to believe that the Court itself was unaware of the full effect of fee order it had made: otherwise it is difficult to conceive how it could have allowed such an order to be entered up without a word of warning to those concerned.
12. At the sitting in February, 1890, notwithstanding that the trust in the said lands was insisted on by Major Kemp and admitted by Warena Hunia, the Native Land Court proceeded to partition the said lands as though the same were held by them in their own right, and after causing a valuation of the estate to be made divided the said block into two parcels called Horowhenua No. II a., valued at £13,392, sad Horowhenua No. II b., valued at £12,244, and awarded them to Major Kemp and Warena Hunia respectively.
13. Major Kemp being dissatisfied with the said proceedings of the Native Land Court, appealed to the Chief Judge of the said Court for a rehearing and a rehearing was ordered accordingly. This reheating took place in the month of May, 1891, before Judges Mair and Scannell, when your petitioner, Major Kemp, again insisted upon the trust, and protested against the land being dealt with by the Court as the private property of the two trustees. In this course he was supported by the general body of owners then present in Court.
14. The said Judges declined to consider or inquire into the alleged trust, believing that they had no power to do so, and they made an order on the 10th day of April, 1891, confirming the previous order for partition. The following is a copy of the judgment delivered on the said rehearing:—
Horowhenua No. II.: Judgment—
"This is a rehearing of a partition order at Palmerston North, on 10th April, 1890, at a Court presided over by Judge Trimble, deciding and allocating the relative interests of Meiha Keepa Te Rangihiwinui ted Warena Te Hakeke, the two owners in the order of the Court for Bock of land called Horowhenua No. II., containing 14,975 acres, made on 1st December, 1886, on partition of the Horowhenua Block 552,000 acres and in which partition order, dated 1st day of December, 1886, and the Land Transfer Certificate, dated 19th July, page 6 1888, issued thereon, the said Meiha Keepa Te Rangihiwinui and Warena Te Hakeke are named as the sole owners.
"Although questions outside the jurisdiction of the Court have been introduced into the case, the only matter with which the Court can deal decisively is the relative share of each owner as against the other, and on this the Court decides from the evidence of every kind before it, that the decision of the original Court, that of 1890, should be confirmed, and confirms it accordingly, and orders in accordance with this decision, as well as a report to the Supreme Court on the question submitted, will be made; the partition orders to date back to the date of the original hearing and to issue when an approved plan of the land the subject of each such order is endorsed thereon.
"But although the Court in making these orders is confining itself to the matters within its jurisdiction, it feels bound to add that from what has transpired during the hearing of the case, as well as what it has seen during the inspection of the block, it is very clear that the issue of the order in 1886 in favour of Meiha Keepa Te Rangihiwinui and Warena Te Hakeke was a severe loss to the Muaupoko tribe.
"The partition of 1886, followed by the Land Transfer certificate, made those the sole legal owners of a piece of land which up to that time was a part and a most important part of the tribal estate of Muaupoko, where from time immemorial they had lived and cultivated.
"It is not within the province of the Court to enquire as to how or for what purpose the certificate for that piece, clearly the property of the bulk of the people of Muaupoko, was issued in the names of two persons only, but the Court feels that under the whole circumstances it is its duty to lay such facts as are within its knowledge before the Chief Judge in order that if any application is made on the subject he would be in a position to advise as to whether it would be desirable to institute further enquiry into the whole matter with a view to ultimate justice being done to all the parties."
15. Finding the Native Land Court powerless to help them Major Kemp and other members of the Muaupoko tribe petitioned Parliament in the Session of 1890, setting out the above facts and praying the House to "take such measures by legislation as will suffice to protect them and to establish the trust."16. The Native Affairs Committee, to which the said petition was referred, made the following report thereon:—
"No. II., 1890. Petition of Major Kemp and 63 others.
"Petitioners complain of the position Major Kemp holds as Trustee for Block II., containing 14,975 acres of land at Horowhenus and asking Parliament to decide his position in the matter. I have the honour to report as follows:—
"That in the opinion of this Committee, after a lengthened hearing of witnesses, this Committee has come to the conclusion that a trust was understood to be created when the Horowhenua Block No. II. was vested in Major Kemp and Warena Hunia; and this page 7 Major Kemp himself states was the understanding. But the legal opinion appears to be that, at this stage of the proceedings which are ping conducted in the Supreme Court, no plea of the trust existing can be asked, and if it could, would have no effect. That under these I circumstances, the necessary legislation should be provided to authorise prehearing of the block, with the object of subdivision among the federal parties concerned.—20th August, 1800."
17. In the Session of 1891, Major Kemp and other members of the Muaupoko tribe again petitioned the House of Representatives to the same effect as before, and with a similar result, the Committee recommending the petition to the favourable consideration of the Government.
18. The immediate effect of the report of the Native Affairs Committee in 1891 was that a Bill was introduced by the Government and passed into law under the title of "The Native Land Courts Acts Amendment Act, 1891," whereby the whole of this land was made "inalienable in any manner whatsoever until the termination of the next Session of the General Assembly." And in the Session of 1892 Major Kemp and 62 other members of the Muaupoko tribe petitioned Parliament to continue this protection, and to take such other measures as would assure and establish the rights of the real owners of the land.
19. The report of the Native Affairs Committee in 1892 was brought up too late to admit of any remedial legislation, to protect the interests of the Muaupoko tribe, and to prevent any alienation of the land in violation of the alleged trust. Mr. Ballance's Government accordingly made a nominal payment to Major Kemp, and advised his Excelleucy the Governor to proclaim this block under the provisions of "The Native Land Purchases Act, 1892," the effect thereof Being to bar all private negotiations and all alienations, except to Her Majesty the Queen, for a period of two years from the date of such proclamation. This proclamation was issued on the day of the prorogation of Parliament, on which date the protection secured by the suspensory Act of 1891 would otherwise have lapsed.
20. The protection of the rights of the tribe through this considerate action on the part of the Government will cease by effluxion of time in October next.
21. An action has been commenced by Major Kemp and other members of the Muaupoko tribe, in the Supreme Court of New Zealand, against Warena Te Hakeke (otherwise called Warena Hunia), in which the plaintiffs pray (inter alia) that the trust may be affirmed by the decree of that Honourable Court; that an enquiry may be had by reference to the Native Land Court as to who are the persons entitled under the original Certificate of Title; that Warena Te Hakeke may be restrained by injunction from selling, transferring, or charging the said lands or any part thereof; that the Certificate of Title issued to Major Kemp and Warena Hunia may be declared void as against the plaintiffs and the other members of the Muaupoko tribe page 8 in possession of the block at the time of the issue of the said Certificate of Title; and that Warena Te Hakeke, who now claims to be the absolute owner, may be dismissed from the trusteeship.
22. Although your petitioner, Major Kemp, has used all diligence in prosecuting his suit, the action cannot be tried before the Wanganui Sittings at the end of September or beginning of October next, and it may be delayed considerably beyond that date.
23. Under all these circumstances your petitioner and the people whom he represents have determined to approach your Honourable House with a prayer for relief; for they are firmly pursuaded that Parliament will not allow them to suffer through their ignorance of English laws and customs, or permit of their being stripped of their ancestral home simply because they failed to make their trustees execute a declaration of trust, as required by the Statute of Frauds of which they had at the time no knowledge whatever, and as to the necessity for which they received no instruction or warning from the Court at the time the order for a certificate of title was made. The favourable reports made from time to time by the Native Affairs Committee, and the readiness with which the Government has extended its protecting hand affords them an assurance that they will not approach your Honourable House in vain.
24. Your petitioner has already shewn to the Committee of Native Affairs that, in agreeing to entrust their lands to the keeping of representative chiefs, the Muaupoko people were doing nothing unusual, and that, from a Maori point of view, it would never occur to them that they were conferring an absolute estate upon the persons so selected and divesting themselves in law of their inheritance—of the land on which they were residing and upon which most of them were born. Your petitioner is prepared to shew this again, if necessary, from the mouths of many credible witnesses; and, having regard to past experience in this matter, whilst fully assured of the strength and justice of his case, he feels more confidence in coming to Parliament for relief than in trusting to the intricacies and uncertainties of the Law Courts.
Wherefore your petitioner humbly prays that your Honourable House will pass a measure empowering the Native Land Court to enquire into the alleged trust, and if satisfied on such enquiry that such trust exists, to ascertain by its ordinary methods, who are the persons beneficially entitled, and in what shares or proportions.
And your petitioner will for ever pray, etc.
[Signed.] Meiha Keepa te Rangihiwinui.