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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

I. The Native Tenure

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I. The Native Tenure.

  • 5. In order that your Grace should see how various are the views which have been entertained on the subject of the Native title to land, I have collected all that I could find to be deserving of attention; and I submit for your perusal extracts from the opinions of—(1) the Bishop of New Zealand; (2) Sir William Martin, late Chief Justice; (3) Mr. Busby, formerly British Resident; (4) Archdeacon Maunsell; (5) Mr. Clarke, formerly Chief Protector of Aborigines; (6) the Native Board of 1856, comprising the then late and Acting Native Secretaries, and the Surveyor-General; (7) Mr. Spain, formerly Her Majesty's Land Claims Commissioner; (8) Rev. Mr. Hamlin, Church Missionary; (9) Mr. Swainson, late Attorney-General; (10) Archdeacon Hadfield; (11) Mr. Short-land, formerly a Protector of Aborigines; (12) Mr. White, for the last ten years Interpreter in the Native Office; (13) Rev. Mr. Buddle, Superintendent of the Wesleyan Mission; (14) Mr. McLean, Chief Commissioner for the Purchase of Native Lands; (15) Rev. J. A. Wilson, Church missionary.
  • 6. Of the eighteen persons here named, nine were in this country before the establishment of British sovereignty, and have maintained to the present time the closest relations with the Native race; five more have been in New Zealand for between eighteen and twenty years; and the other four, who are no longer in the colony, were all from their official position necessarily called upon to form a judgment on the question of Native tenure.
  • 7. The result of all these inquiries has certainly not been to present a very clear idea of what Native title is, and still less of what it is not. Chief Justice Arney said in the Legislative Council the other day, "I have found much inconsistency and contradiction, but no novelty, and have derived this consolation— namely, of reflecting that little as I know of the Native title, or of the (so-called) Maori law of real property, the generality of people, even of the learned, the periti, know little more."
  • 8. At the same time I think there is no reason to doubt that, notwithstanding the variety of rules in different localities and among different tribes, the title to land among the Natives of this country was a tribal rather than an individual title. The individual right to possess whatever portion of land was subdued by the labour of each member of the tribe was undoubtedly recognized and transmitted by descent from generation to generation; but the right to alienate land so held was one the exercise of which was restricted by the obvious necessity of maintaining the unity of the tribe, of securing its right to service from each member, and of preserving its land from going into the hands of strangers. It is doubtful, indeed, whether the right to alienate land in perpetuity was well understood among the Natives before the European settlement of the country.
  • 9. I now beg to submit to your Grace a few of the opinions which have been given on both the tribal title and individual right.* "Generally there is no such thing as an individual claim, clear and independent of the tribal right.", "Each Native has a right in common with the whole tribe over the disposal of the land of the tribe, and has an individual right to such portions as he or his parents may have regularly used for cultivations, &c. This individual claim does not amount to a right of disposal to Europeans, as a general rule." "The land does not, generally speaking, belong to one individual, but chiefly to the tribe." "Land is held by them either by the whole tribe or by some family of it, or sometimes by an individual member of a tribe." "It may be observed that scarcely any of the land of the aborigines of this country can be said to be the exclusive property of one individual; though the descent through which a party can trace their claim to the land they hold is by a single person. This person can sell if he likes without the consent of his party; the party selling without his consent would be a hoko tahae (dishonest sale)….. This absence of the individualization of property seems rather attributable to the state of the country than to any defect in the line of descent. The individualization of the descent is clearly recognized." "The lands of a tribe were portioned out according to the number of families of which it consisted, and were claimed by each family as its own, nor did any one meddle with it or occupy the land of another family without express permission." "For the most part, the boundaries of property are well defined. In the immediate neighbourhood of such pas as are at present inhabited, land is often minutely subdivided, each separate piece belonging to some one person….. There might be several conflicting claimants of the same land; but, however the Natives might be divided among themselves as to the validity of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants." "In this way families hold and cultivate their ground; enlarging their individual cultivations from time to time, thus establishing an indisputable title to such lands as their special and particular property….. All or any of these acts give an undeniable right to special property in land heretofore considered common." "The chiefs are the principal landholders: Every individual, however, so far as I have been able to learn, has his own estate which he has inherited from his branch of the family, and which he cultivates as he pleases." "The head teacher of the tribe is about to be admitted to holy orders, which led me to ask whether he had a claim to any land which might be available for his maintenance. I was immediately informed of the exact spot, and of the grounds of his title….. Let the [Ngatiawa] tribe be once assembled in undisputed possession of its ancient territory, and let each freeholder's claim be duly investigated, and a Crown title granted to each as an individual proprietor, with full power to dispose of his land by sale, lease, or bequest… … I desire to see each Native landowner secured by a Crown grant for his own individual property…. Every one of these 340 men [Ngatiawas] believes himself to be a proprietor of land in this district…. These instances appear sufficient to prove that, according to the primitive usages originally existing in this country, such a law as positive personal right to land was acknowledged." And, lastly, I beg to refer to extracts of a paper, known to have been written by one of the Interpreters in the Native Office, containing instances of sales effected by Natives at various times without reference to the chiefs.
  • 10. But whatever may be the true theory of Native tenure, as a theory, there is nothing more certain than that there exist among the Native tribes themselves no fixed rules by which the practice of the Government in its dealings with them for land could be guided. Mr. McLean, whose experience page 30extends over more than twenty years, and who has bought more than twenty millions of acres for the Crown, in his evidence before the House of Representatives last August says (I give the substance of his answers): "The tribal right varies so much in different parts of the country, I should like to know what particular part of the country is referred to, as the custom which prevails in one place does not in another. There are very wide exceptions to any general rule, and the exception is wider than the rule. In some tribes the different hapus (families) must be consulted, in others the chiefs. The various hapus which compose a tribe most frequently have the right of disposal, but not always. You must discover the rights of the parties by inquiry of the people in the district where the land is situate and elsewhere. The Natives have no fixed rule. The custom varies in different districts. In the Ngatiawa Tribe a family of three or four people has been regarded as empowered to dispose of its common property: they have enjoyed this right for the last eighteen years."
  • 11. Again, Mr. Busby, formerly British resident, says: "It is certain that the Maoris had no fixed rule to guide them in the disposal of their land;" and the Rev. Mr. Hamlin: "All these acknowledged Native rights were by might often set aside, and arbitrary power ruled. … Tribal rights, or any uniform course of action or general plan for their guidance in the management of their lands or other affairs, I have not found to exist among the Natives of this country, nor do I believe they have any such plan or general rule. Bach party or tribe seems to have been guided by existing circumstances in the management of their affairs."
  • 12. But, above all, I beg your Grace's attention to the speech delivered by Mr. McLean to the conference of chiefs at Kohimarama, and contradicted by none, in which he says: "No fixed law on the subject [of their lands] could be said to exist, except the law of might. It was true that 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….. The Native has no fixed law to regulate the rights of property. The European has a law to guide him on this subject; the Native has no well-defined law….. Powerful tribes took possession of land by driving off or exterminating the original inhabitants; these in their turn drove off other less powerful tribes. The conqueror enjoyed the property while he had the power of keeping it."
  • 13. And in order to illustrate the difficulties in the way of laying down fixed rules, I beg leave to give your Grace a few instances of conflicting opinions:—
There is reason to think that an independent right to alienate land without the consent of the tribe is unknown in New Zealand. In the Bay of Islands, where land purchases were first made, the Native of every degree of rank sold his land without reference to any other authority.
The rights of ownership, whether in one or many joint proprietors, were not alienable without the consent of the tribe. Often there will be only one main proprietor or take [source of title]; but, if he be not a chief of rank, the head man will take upon him to dispose of the spot. Often, and more frequently, there will be several take, and one of them will sell without consulting the others.
Over the uncultivated portions of territory held by a tribe in common, every individual member has the right of fishing and shooting. The lands of a tribe do not form one unbroken district, over which all members of the tribe may wander. On the contrary, they are divided into a number of districts appertaining to the several sub-tribes.
Ordinary freemen (Tutua) cannot alienate that land which is absolutely their own for all practical purposes, but is not to be disposed of in a manner contrary to the supposed interests of the tribe. When any member of a tribe cultivates a portion of the common waste, he acquires an individual right to what he has subdued by his labour; and, in case of a sale, he is recognized as the sole proprietor.
A tribe never cease to maintain their title to the lands of their fathers. The title or claim to land by tribes existed no longer than it could be defended from other tribes.
The right of each tribe to land extends over the whole of the tribal territory, and entirely precludes the right of any other tribe over it. No tribe has, in all instances, a well-defined boundary to its land as against adjoining tribes; and the members of several other tribes are likely to have claims within its limits.
Conquest, unless followed by possession, gives no title. So distinctly is this principle recognized that I have no doubt that any attempt to support and maintain the validity of titles derived from conquest only would be met by a most determined resistance, even if attempted by Her Majesty's Government. Conquest alienates the land; but it has its quibbles. Conquest and occupation give a valid title: conquest without occupation is doubtful.
The New Zealanders do not forfeit their territorial rights by being carried into captivity or becoming captives. … I have known slaves tenaciously maintaining their territorial rights while in a state of captivity. The question turns upon whether slaves taken in war, and Natives driven away and prevented by fear of their conquerors from returning, forfeit their claims to land owned by them previous to such conquest; and I most unhesitatingly affirm that all the information I have been able to collect as to Native customs throughout the length and breadth of this land has led me to believe and declare the forfeiture of such right by aborigines so situated. In fact, I have always understood that this was a Native custom fully established and recognized, and I do not recollect; ever to have heard it questioned till [now].
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  • 14. The conflicting authorities here quoted furnish a satisfactory answer to an accusation constantly preferred against the Native Department, that, in extinguishing Native title, they are guided by no fixed rules, but have, with apparent caprice, dealt with chiefs in one place and with proprietors in another. No one of my predecessors has ventured to lay down any precise theory on the subject of Native tenure, nor could I pretend to do so; on the contrary, I have endeavoured to follow in the path traced out by them, and have studied to preserve as much consistency and uniformity of action as circumstances will permit in all dealings with Native proprietors. I now propose to prove to your Grace that my dealings with the Ngatiawa Tribe have formed no exception to this rule.

* See ante, No. 9.