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

Report on the Working of "The Native Lands Act, 1865." — (No. 1.) — Mr. F. D. Fenton to the Hon. J. C. Richmond

Report on the Working of "The Native Lands Act, 1865."
(No. 1.)
Mr. F. D. Fenton to the Hon. J. C. Richmond.


Native Land Court Office, Auckland, 11th July, 1867.

In compliance with Mr. Hall's request, I have the honour to state that there will be no change, as far as I can see, in the expenditure necessary for the maintenance of this establishment. Some saving might be made if a Court could be legally constituted with one Assessor instead of two, in cases where the presiding Judge might think that one would suffice, but, as this would under the existing law be illegal, no deduction can be made on this account. It should be borne in mind that the officers of this department has also discharged the functions of the Compensation Court, and that no part of the permanent expenses have been charged to that department, with the exception of one clerk. I submitted this question to the consideration of Colonel Russell, stating my own opinion that £1,200 a year would be a fair portion to be placed to the account of the Compensation Court; and I also urged this view personally upon Mr. Richmond: but it was not entertained by either of these Ministers.

I observe that you request me to include in my estimate the outlay which, will be necessary on surveys, and the department organized by Mr. Heale. All the expenses of surveys are paid by the suitors, and therefore no provision is necessary Tinder this head; and I am unable to state what funds will be necessary for the department organized by Mr. Heale. That gentleman is in the North trying to establish some base or principle on which the confusion of boundaries, &c., in that part of the country may be settled; and, though I wrote to him immediately on receipt of your letter, I presume that he has not received my communication, for he has neither arrived in Auckland nor replied to it. Mr. Heale's is an independent department, charged with other duties than examining the plans sent into this Court; and I am unable, therefore, in his absence, to furnish any estimate of the requirements of that establishment. If he has received my letter I do not doubt that he will arrive in Auckland by the next vessel, when Mr. Hall's request shall be immediately complied with.

Herewith I beg to hand you a return of the operations of this Court for the periods therein stated. Of course I have been to a great extent dependent on the clerks in the office in making out this return, and cannot vouch for its perfect accuracy. Indeed, I believe that it would be impossible between any two given dates to furnish a return that would be absolutely perfect, for, of course, many causes-are in esse, and can scarcely be classed under any head; but, as far as I am able to discover, I believe the return may be implicitly relied upon in making deductions, or for any purpose for which such a return would avail. I have commenced the return, according to your desire, with the commencement of the Act in November, 1865. The period from November, 1865, to June, 1867, is not perfect, for Courts were sitting in many parts of New Zealand in June of whose operations I have, as yet, no knowledge.

In explanation of this return, I desire to state that the amount or land included in "interlocutory orders" is necessarily unascertainable with accurate certainty, as those orders were made by the Court under the authority of clause 71, which authorized surveys in certain cases to be dispensed with. But the amounts stated will not be very wrong. Thus, in the first return, the number of acres passed through the Court in this manner is stated at 564,000, comprised in thirteen orders. Eight of these were made at a Court held at Cambridge, at which I presided, and a surveyor produced rough trigono-metrical surveys of these, which showed the blocks to contain about 560,000 acres. These lands, I may mention, were the sole property of William Thompson's tribe, Ngatihaua and-Ngatikoriki, and his subject tribe Ngatiraukawa, who suffered so severely at the attack on No. 3 Redoubt at Tarauaki. For the remaining five orders I have added 4,000 acres. It is probable they will amount to very much more, as it is the large blocks of land that the Native refuses to survey until his title is established. This very sensible view was first taken by William Thompson at the Court held at Hamilton. He said that he had declined to survey land until the Court had recognized his title, for it might be that after he had completed a survey the Court might decide in favour of another's title, and how would he then recover his expense? but let the Court, he said, first decide on his title, and then ho could survey with confidence. In all cases of interlocutory orders without surveys a time is limited in the order.

The orders on subdivision can only be made in case more than five names appear in the grant. In other cases the Legislature considered that subdivision was a matter for private arrangement by deed. Considering the difficulty of access to lawyers by Natives living in country parts, I think this provision might well be altered so as to allow the Natives to choose in, all cases whether they will resort to a private legal adviser to effectuate a subdivision, or whether they will return to the Court.

The production of this return has enabled me to form in my mind a system of record by which I hope in future to be able to furnish a similar and indeed a more comprehensive return without delay, and without the labour that has attended the making of this.

In compliance with the desire expressed in the concluding paragraph of Mr. Hail's letter I caused letters to be addressed to the several Judges, requesting a report of their experiences in the working of the Act, and the general effect likely to be produced by it. The replies which I have received are page 23enclosed in this letter, and the others will be sent on as soon as they arrive. I thought that it would be more satisfactory to the Government to have the opinion of each Judge than that of myself alone, although of course based to a great extent on the operations of all.

With respect to the point on which Mr. Hall specially desires information—viz., the tendency of the Act to cause the parties to subdivide their lands—I remark that every certificate indicates as far as it goes subdivision of the tribal estate, and the insertion of certain names in a certificate of a block of land" is almost always the result of an arrangement amongst the members of a tribe, the consideration being that the names of those now inserted are to be omitted in certain other certificates, for it must be remembered that all lands are owned by the tribe. But perhaps Mr. Hall uses the word subdivision in a more limited sense, tantamount indeed to an individualization of titles In this point of view I think the Act has not had time to operate extensively. Mr. Maning, indeed, speaks of the process as, having, commenced in the North, and being likely soon to be in active operation; but, generally speaking, I think that hitherto the Natives have only taken preliminary steps. Most of the blocks hitherto certified have been brought into Court for the purpose of enabling sales or leases to be made to Europeans, in order to raise money for the purpose of completely individualizing other, blocks or some of the blocks already passed. It must be remembered that the most formidable obstacle to the rapid progress of conversion of titles is the extreme poverty of the Natives; and the great commercial depression which has existed for the last twelve months, and which is now more aggravated than ever, has rendered sales of land almost impossible.

Two years ago no one could have foreseen the price to which land has fallen in the Province of Auckland. Thus, Walter Kukutai's tribe have in vain been offering 40,000 acres, in one block, of the finest land in the Waikato at 5s. per acre cash, or 6s. 6d. deferred payments extending over five years. A block in the North, called Waitaroto, cost 9d. an acre for survey, Id. per acre in other expenses, and was offered for sale at Is. per acre. I do not think, myself (although Mr. Maning differs, and I have the very highest respect for his opinion), that any great progress will be made amongst the Natives throughout the Island in obtaining individual holdings in the sense in which Mr. Hall uses the word, if I rightly apprehend his meaning, until the present period of appalling depression shall have passed away. Still, I should add that a great number of the certificates already issued are in favour of individuals, and whether these are trustees put in for the purpose of sale on behalf of the tribe, or whether they are to be regarded as intelligent members of the tribe determined to possess freeholds for themselves, it is impossible to say and it would be difficult, if not impossible, to obtain this information from the Natives, unless they are thoroughly satisfied that our motives in seeking it are not such as to excite suspicion; and to satisfy them on this as, indeed, on any other head must be the work of time and an unchanging policy. That the ultimate result of the operations of the Court will be the conversion of the Maori nation into two classes—one composed of well-to-do farmers and the other of intemperate landlords—I have little doubt, but I do not think that these results will be brought about as speedily as many people think. The intemperance and waste so noticeable amongst the Maori landlords of Hawke's Bay are matters much to be regretted; but, in my judgment, it is not part of our duty to stop eminently good processes because certain bad and unpreventable results may collaterally flow from them, nor can it be averred that it is the duty of the Legislature to make people careful of their property by Act of Parliament, so long as their profligacy injures no one but themselves. It is well that all the money squandered by the Maori landlords is spent in the place whence it is drawn. Education will cure the evil, for drunkenness is the vice of the uncultivated and brutish man.

I will take this opportunity of expressing my complete satisfaction with the Act of 1865. I never expected, nor, I think, did the Legislature expect, that it would have worked with the wonderful ease which has marked its operations. The preliminary notices and, other cautionary processes authorized by the Act have been long since nearly abandoned, and are now very rarely used. I am not aware that our operations in any single instance have excited apprehension in the minds of the Government, or caused them one moment's anxiety. Indeed, so regular and uninterrupted has been the course of proceeding, that I have been sometimes inclined to think that the vast change that has taken place in the history and status of Native land, and the views of the Maoris with respect to the Government on this great question, would not be, sufficiently appreciated.

The greatness of such a change might not be recognized, whose commencement and progress are distinguished by nothing but quiet. The entire submission of the Maoris to the decisions and orders of the Court is a feature of most encouraging promise. The first claim that William Thompson brought into Court was rejected, and an order made in favour of another, but he silently acquiesced. Indeed, I know of no case where any feeling stronger than that of temporary disappointment has been shown by suitors on the loss of a case, and occasionally we have had to resort to strong measures. In New Plymouth we sent a Maori to the gaol for twenty-four hours for prompting a witness. In Hawke's Bay Te Hapuku was forcibly ejected from the Court for disorderly behaviour; and in, Auckland chiefs were handed over, to the constables for contempt, but in no case was the slightest sympathy shown by their fellow-countrymen, and in each case a public apology Was made. I should add also that each case sprang from the same cause—drunkenness If any legislation takes place this session, I would suggest' the following alterations in the Act, though they are not of sufficient importance to call for change on their account alone Clause 12: For "two" insert "one." Clause 46: Declare that the second "therein" in the fifth line applies to the grant, and not to the certificate. Clause 50: For "five" substitute "two." Clause 55: In third line erase "lessee," and insert after "vested" in the fourth line "and by every lessee," and afterwards after. "by any lessee" the words "an annual sum." Clause 62: Add a proviso that it shall be lawful for the Chief Judge from time to time to fix additional fees, and to alter those fixed by the Act, which scales of fees, when so fixed or altered and approved by the Governor in Council, shall be collectable and enforceable as if inserted in the Act. Clause 74: Enact that the execution shall be sufficient if made in the presence of the interpreter and another witness, and the declaration shall be subsequently made before a Justice of the Peace or a Judge of the Court. The last alteration would be very advantageous, as it is very difficult and expensive to get all the grantees page 24together in the presence of a Justice and an interpreter, especially in remote parts of the country. Under the clause, as altered, the interpreter could take the deed of conveyance round to the signers.

The Act of 1866 should, I think, be entirely repealed; but the questions involved are questions of policy into which I would not willingly enter, unless invited by the Government to do so. But perhaps I ought to state that, in my judgment, the effect of this Act, so far as it has had any operation, has been of an injurious tendency, principally because both Maoris and English have seen in it a partial abandonment of the fundamental principles adopted by the Legislature in. 1862, and confirmed in 1865; and I am of opinion that no law relating to Maori land or to Maoris will work well and effectually that does not command the approbation of both races. I think the Maori will progress the better the more he is exempt from protection or interference to which other citizens are not subject. I believe that in this opinion all the Judges concur.

The clause relating to an acreage fee for examination of surveys has never been brought into operation. I shall speak more fully on this question in my reply to Mr. Stafford's letter of the 15th May.

The great difficulty in the rapid conversion of the Maori titles and the individualization of holdings is the necessity and expense of surveys: some idea may be formed of the powerful character of this obstacle from the fact that the plans already in the Native Land Court Office have cost, according to Mr. Heale, nearly <?>40,000. This large sum has all been paid by the suitors nominally, though I presume that the greater part has been advanced by the intending purchasers. Nor can this expense be avoided, for it is obviously impossible to make a grant of lands unless there is a map of the land to be granted, except indeed in the few cases of islands or remarkable peninsulas.

In the Province of Auckland this difficulty is vastly increased by the unsatisfactory state of the Government survey, and the very defective surveys made by Mr. W. Clarke, who was largely employed as a surveyor in the Land Claims Court. This gentleman's surveys are extremely uhconseientious, and indeed, in many cases that have come collaterally before the Court, can scarcely be called more than sketches. In the country south of the Waikato confiscated blocks the territory is untouched by surveys; and I venture to hope that Mr. Heale will be able by the establishment of a system of triangulation in those open plains, greatly to reduce the expense attendant on furnishing maps to the Court of the land to be investigated. Our operations under the form of interlocutory orders have already nearly extended up to Lake Taupo from the boundary of the confiscated block southward up the Waikato Valley, and Courts are fixed which will deal with lands extending from Maketu through the Rarawa country to Taupo; and I. am aware that claims are, or soon will be, in for large tracts of country surrounding the Lake on all sides except the westerly side, and perhaps on that side also. I have great hopes that all these lands, under an improved system, may be surveyed at a greatly reduced cost.

In the Province of Hawke's Bay the Government surveys seem to be in a much better state, and the work of the Court has progressed there with less difficulty and I believe with less cost than in the Province of Auckland.

In Wellington Province the Government surveys seem to have been admirably conducted, and, as far as I know, no loss or difficulty has been occasioned to suitors in that province through the errors or defects of old surveys; but the Court has experienced singular misfortunes from the insufficiency or want of attention in some of its own licensed surveyors there. It would be very well if some of the large number of surveyors licensed in the Province of Auckland could be induced to remove to Wellington, for there is an abundance of claims from the latter province, but very few surveys.

I have refrained as much as possible in this reply from entering on questions of policy, as I do not understand that Mr. Hall desires any expression of my views on the principles of the legislation affecting Native lands. But I may be pardoned for saying that, in my judgment, nothing that has yet been tried has so largely tended to produce in the mind of the Maori peaceful desires and grateful confidence in the Legislature as "The Native Lands Act, 1865."

I have, &c.,

F.D. Fenton,

Chief Judge.

The Hon the Native Minister,