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

VIII. Lastly, the Present Aspect of the Subject

VIII. Lastly, the Present Aspect of the Subject.

117.The evidence which I have submitted to your Grace will, I feel confident, be deemed sufficient by Her Majesty's Government upon the following points: (1.) That there is reason to doubt whether any seignorial right, distinct from the right of property, in a chief of a tribe to assent to or forbid the sale of land by the separate hapus or subdivisions of the tribe, had any existence at all among the Natives of these Islands prior to the Treaty of Waitangi. (2.) That while the proprietary rights of chiefs, families, and people were guaranteed by the Treaty, no right in the chiefs, distinct from a right of property, was thought of in the original interpretation of the Treaty. (3.) That no such right has been admitted to exist in any chief of the Ngatiawa Tribe at Taranaki throughout successive acts and decisions of every Governor of New Zealand. (4.) That Governor Hobson in 1842 recognized the Waikato title by conquest, and (through the then Chief Protector of Aborigines) took a cession of their rights. (5.) That Governor Fitzroy in 1844 admitted separate rights of ownership in the families of the Ngatiawa Tribe, and expressly promised to purchase such rights whenever they should be offered for sale on reasonable terms. (6.) That Governor Sir George Grey in 1847 refused to admit any seignorial or even tribal title in the Ngatiawa, and determined to resume the land at Taranaki for the Crown after ample reserves should have been made for the resident and absentee Native page 46claimants, and after a reasonable price per acre for the residue should have been offered to them. (7.) That the right of the respective hapus and subdivisions of the Ngatiawa to cede their proprietary rights to Her Majesty has been repeatedly and expressly recognized in the acquisition of various blocks of land at Taranaki during a period of more than sixteen years, and has been the basis of every cession of territory there to Her Majesty since 1844. (8.) That the acceptance by me of the land offered for sale by two hapus or sections of the Ngatiawa, representing the Ngatituaho and Ngatihinga as well as a portion of the Puketapu branches of that tribe, whose act was confirmed and ratified by a large number of absentee owners at other places, was in accordance with the precedents upon which the acquisition of land from the Ngatiawa at Taranaki had invariably proceeded. (9.) That the proprietary rights of any owner who may not have assented to this sale have been expressly saved, and that any one who has a valid claim of ownership may retain his land, or cede it to Her Majesty, as he pleases. (10.) That the insurrection of Wiremu Kingi is not a legitimate resistance to an attempt forcibly to eject him from an acre of land to which he has a just right, but is the result of a league which exists among certain tribes forcibly to prohibit any further alienation of territory to the Crown, even by the rightful owners thereof who may be willing to sell.
118.I have thus answered that part of Mr. Fortescue's questions which inquires how far the existance of the seignorial right now claimed for the chiefs has been recognized by the British Government, or justifies the proceedings of Wiremu Kingi.
119.With respect to the other part of the inquiry—Whether there are reasons apart from the Treaty of Waitangi in favour generally of the recognition of such aright, and whether it ought therefore to be admitted in future transactions,—I beg to make the, following brief remarks:—
120.In a pamphlet which I received last night, written by Sir William Martin, late Chief Justice of this colony, he says, "This tribal right is clearly a right of property, and it is expressly recognized and protected by the Treaty. That Treaty neither enlarged nor restricted the then existing rights of property. It simply left them as they were." It is precisely this principle which has been recognized in every cession of territory since the Treaty. But it must be remembered that the ancient customs of the Natives with respect to land had been materially affected by engrafting upon them the new practice of alienation since the first irregular settlement of the country. We found that the Natives had no fixed rules applicable to all the tribes and to every locality, and we adopted as our guide in each district the customs which in that district were in force among the people themselves, where the right of alienation had followed the old right of property whether in the tribe or the family.
121.To attempt now to introduce a new kind of right, distinct from that of property, would require definitions involving in practice a really insuperable difficulty. Assuming any right, distinct from a right of property in the soil, to be admitted in a chief to assent to or forbid the sale of land where the real owners are willing to sell, it would still have to be determined in whom that right should vest. The Government would first have to decide what was the tribe, and who was the chief of the tribe. Failing this they would have to decide what were the respective subdivisions of the tribe, and who were the chiefs of those subdivisions. I have no hesitation in saying that the relations between the chiefs of the several tribes of New Zealand are not such as would justify the British Government in arbitrarily coming to such decisions, and that at present it would be a simple impossibility to do so with any hope of obtaining the assent of the Native people. But, apart from this inherent difficulty, I am of opinion that for the British Government now for the first time to announce that a right would be admitted in any chief whatever, distinct from his right of property in the soil, to prohibit the cession of territory to Her Majesty by the real owners of the land, would be as unjust as it would be impolitic. It would sanction the objects of the land league, which declares that no land shall be allowed to be sold, even though the real owners should not have joined the league; it would strengthen the confederacy which based upon the league, aims at the subversion of the Queen's authority and the establishment of an independent nationality: it would effectually discourage those loyal subjects of Her Majesty of the Native race who rest upon the guarantee of their proprietary rights in the Treaty of Waitangi; and it would render all but impossible any success in the efforts which have been made during so many years to induce the Natives to convert their tribal tenure into individual property secured by a grant from the Crown.
122.I can only, therefore, in conclusion, express my conviction that the proper course for Her Majesty's Government to pursue in the future is that which has been steadily followed in the past— namely, to continue to deal with the chiefs or the proprietors of the soil according to the custom existing among the Natives themselves in each particular district in which cession of territory may be in contemplation, and in the manner which best accords with the rights of property actually in force among them. I look forward, however, to the time when the Natives will be prepared for the establishment of a tribunal in which their varying customs may acquire some settled form, and to the decisions of which they will yield a peaceful submission.
123.I transmit herewith a memorandum by my Responsible Advisers on the same subject.

I have, &c.,

T. Gore Browne.

His Grace the Duke of Newcastle, &c.