An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand
I. D. McLean, Chief Commissioner for the Purchase of Native Lands.—1860
I. D. McLean, Chief Commissioner for the Purchase of Native Lands.—1860.
The Governor was most anxious that some means should be devised by the chiefs of the conference to define tribal boundaries, and make such a subdivision of property among tribes, families, and individuals as would secure to them their landed rights on a more certain foundation than now existed. The chiefs present were all aware that land was the main source of many of their difficulties, occasioning loss of life and affecting the property of both races. No fixed law on the subject could be said to exist, except the "law of might." It was true various customs relating to Native tenure existed, but these were not in any way permanent, and the endless complications of such customs were eventually resolved into the law of might. Paora, one of the Ngatiwhatua chiefs present, had stated that one law did not exist with the Europeans and Natives about land. This was true, inasmuch as the Native has no fixed law to regulate the rights of property. How, therefore, could it be expected that one law should prevail? The European has a law to guide him on this subject; the Native has no well-defined law. The Governor had long thought of this subject, and availed himself of the present conference of chiefs to place his own views before them, in the hope that they would co-operate with him to devise such a measure as would simplify Native tenure, and enable them to leave the land they inherit in the quiet and undisturbed possession of their children. Scarcely a year passed without our hearing of war about land in some part of New Zealand. At Tauranga the Natives had been fighting very lately; also at Whakatane, Tunapahore, Upper Whanganui, Hawke's Bay, Ngapuhi, Te Ihutaroa, and now at Taranaki. It was asserted by some that these wars had been occasioned by Government land-purchases. This was untrue. The Government used every endeavour to prevent quarrels in conducting the purchase of land; and at those districts throughout New Zealand where no land had been purchased, such as Te Ihutaroa and other places with which the Government did not interfere, bloody feuds were carried on between the different tribes from time to time. Powerful tribes took possession of the land by driving off or exterminating the original inhabitants. Those in their turn drove off other less powerful tribes. The conqueror enjoyed the property while he had the power of keeping it. None were certain how long they could occupy the land in peace. It was true that Christianity introduced a different state of things. By its influences the conquered were permitted to re-establish themselves on the lands of their ancestors. In process of time, however, the conquered encroached too far on the formerly-recognized rights of the conqueror, occasioning up to the present day much bitterness of feeling between the two classes of claimants. Tribes vary in their customs about land, but after all their various customs are liable to be superseded by the law of might. He would not detain them longer, but wished them to consider this message well before they expressed an opinion on it.—[Speech at the Conference of Native Chiefs, July, 1860: in "Maori Messenger."]
You will remember being examined in writing by a Commission issued by his Excellency in 1856: one question put to you was, "Has a Native a strictly individual right to any particular portion of land, independent of the tribal right over it?" I find among the answers in the negative "McLean." Is that you, and was that your report on the question?—I am the Mr. McLean, and that is the reply which I made.
What do you mean by tribal right?—I suppose it means the right of a tribe.
Will you describe the meaning of tribal right in regard to the transfer of land?—It varies so much in different parts of the country, I should wish to know what particular part of the country you refer to, as the custom which prevails in one place does not in another.
What is the general rule?—There are very wide exceptions.
Is the rule or exception wider?—The exception is the wider.
When a hapu alienates, who represents it, and is the consent of all its members necessary?— In some tribes the different hapus must be consulted, in others the chiefs; much depends upon the personal character of the latter. I did not say that hapus or subdivisions of tribes had not a right of transfer of property. The various hapus or families which compose a tribe most frequently have the right of disposal, but not always; the custom varies.
How do you discover what the rights of the parties are?—You must discover them by inquiry of the people in the district where the land is situated, and elsewhere.
If Patukakariki is the head of the Ngatihinga, could an individual sell without his consent?—A certain number of claimants could sell, but not invariably without his consent.
What proportion?—a bare majority?—I cannot say. It would depend on the locality, the people, and the boundaries.
Then the sum of your evidence is this: that there are no settled rules or principles guiding alienation of land, and that in such matters the exception is wider than the rule?—The Natives have no fixed rule. The custom varies in different districts.—[Evidence at the Bar of the House of Representatives, August, 1860: Sess. Paper E.–No. 4.]