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

No. 10. — The Chief Judge, Native Land Court, to the Hon. the Native Minister

No. 10.
The Chief Judge, Native Land Court, to the Hon. the Native Minister.

On the General Working of the Native Land Court, Surveys, &c.


Native Land Court Office Auckland, 31st July, 1867.

In reference to my letter of the 17th July, 1867, and Mr. Stafford's letter of the 15th May, 1867, I have now the honour to inform you that Mr. Heale has returned to Auckland, and is preparing a communication on the subject of surveys, and the maintenance the establishment necessary for securing their accuracy, which will go to Wellington by the same mail which conveys this. It seems to me proper that I should say a few words on this subject, and, in doing so, I do not see that I can avoid expressing an opinion on some principles of the Act of 1866, although it was not my original intention to question its policy.

I think it will be admitted that the only logical ground on which it can be argued that the expense of checking surveys of lands passing through the Courts should be borne by the suitors, is that the Governor has a right, or rather a duty, before signing a grant, to ascertain, at the expense of the persons to be benefited, that the land comprised in the grant is free from incumbrances and hostile titles; in other words, that the Crown is justified in granting the land which it proposes to grant. As far as the Court is concerned suitors have fulfilled the obligations imposed upon them by "The Native Lands Act, 1865," when they have furnished a proper survey of the lands claimed, which, complete in all technical matters, is uncontested as to its boundaries, and actually or tacitly admitted to be free from encroachments on other persons' property when the claim which it represents is heard and adjudicated upon in Court. A fee of not exceeding £1 was imposed by the Act to defray the expense of enabling the Government to employ a competent person to examine all plans on their behalf. Up to this point it would appear that the fees received are sufficient to defray the expense of the service for which they were provided, and practically, as far as anything is judicially disclosed, it is so, for when Major Heaphy was employed to examine the plans his charges were made at a certain rate per plan, which did not equal the amount of the fees charged under the Act under the head of "Examination of Plans." I should add, however, that experience has shown that a mere examination of the plans in the office does not suffice to render the Court secure in making certificates, or the Crown in making grants, for the honest execution of the work by the surveyor—i.e., whether the plan rightly represents what it pretends to represent—cannot be ascertained in many cases without an actual testing of the work on the ground.

The vast increase of the business of the Court, and the fact which has been subsequently page 30discovered, that all the Native lands of this Island, embracing the larger portion of its entire area, would pass through the Court, and that at a rate of progress which seems to be annually accelerating, naturally caused the Government to regard with anxiety the confusion which might, and most likely sooner or later would, be produced by the operation of a large number of independent surveyors, who had no object in their work beyond that of earning money, and who might easily mislead the Court unless some officer were appointed by the Government competent from his professional knowledge to exercise some control over them, and who might, after actual examination at the locus in quo if necessary, bring before the Court any matter which required notice. Moreover, from the appointment of an officer of this description would result a compilation of all the maps, and also the gradual correction and reconcilement of previous erroneous and detached surveys. There will thus be framed a perfect and very valuable map of the country generally. It should be borne in mind that the most of the difficulties which the Court has experienced in the matter of surveys, and their technical imperfection, have resulted from the failure of the Government to secure anything approaching to a reliable map of the country, or that part of it acquired or sold, or indeed to cause to be depicted anywhere true representations of the land acquired by it from the Natives, or parted with by it to grantees. It is very probable that under the peculiar circumstances attending the history of the land at this part of New Zealand no other result could have been arrived at. The purchase at irregular intervals of blocks of land from Natives, some of them surveyed and some not; the system of sale which followed Sir George Grey's ten-shilling-an-acre Proclamation, when any person could employ his own surveyor; the acquisition of tracts of land as "surplus lands" under the Land Claims Court, marked by lines which on being tested are absolutely inaccurate, and in many cases have never been surveyed at all; added to the contract system of surveying, or rather of "line-cutting," which has so largely prevailed, have all combined to create a state of confusion and uncertainty which the Native Land Court has been the means of bringing prominently under notice, and which it and the Government have been compelled resolutely to face.

But the question of whether the Natives seeking benefit under the Act of 1865 should be compelled to pay the expense of setting all disorders right, is subject to other considerations. The expenses legitimately thrown upon them by the Act of 1865 have been borne by them without a murmur, and in fact could not be objected to with reason. They were offered certain benefits at a certain expense of money and trouble, and their refusal or acceptance of the terms offered amounts to nothing more or less than the making or refusing to make a contract. That the Maoris generally have, with great advantage to themselves and benefit to the community at large, accepted and vigorously acted upon the beneficent offer of the Legislature is very apparent, but, in my opinion, it would not be wise, nor does justice or policy require, that any great deviation from the principles then established and the demands then made should now be advocated. When the Act of 1865 was before Parliament Mr. Robert Graham, then Superintendent of Auckland, and Mr. FitzGerald asked me if I thought there was any objection, as far as Natives were concerned, in fixing the duty at 15 per cent., instead of at 10 per cent. as proposed in the Bill, and I replied that, in my opinion, if the Legislature thought that 10 per cent. was likely to be insufficient to defray all expenses and leave a surplus, it would be advisable to fix a larger rate, but the amount then determined, whatever it was, should never afterwards be altered; in fact, that very great difficulty and embarrassment would be caused by any subsequent increase. And besides this political question, I respectfully submit that when the Legislature thinks upon the expense of maintaining Mr. Heale's establishment (which discharges other duties besides those attendant upon the operations of the Court), it should also reflect that the Natives have spent, during the last eighteen months, in surveying the land of the colony, £40,000, from which expenditure the Government indirectly obtains the benefit of having surveys and maps of the country made, for as soon as these private surveys are produced in Court they become its records, and are the property of Her Majesty, and available for public use.

Mr. Stafford particularly referred to the Act of 1866, and the tax thereby authorized, not exceeding 6d. an acre. Subject to the remarks contained in the previous part of this letter, I desire to remark that the clause to which he refers is objectionable in two points. Firstly, because the tax is made payable on the issue of the grant—i.e., by the Native grantee—a provision which would render its collection in most cases impossible; secondly, because the duty is a fixed duty, applicable equally to the block of 10,000 acres and the block of one acre, and can in no way be diminished by the fact that the Native had employed a good surveyor, whose work was in itself perfect, rendering expense by the Government needless; or be increased by the necessity of inquiring into and correcting the worthless production of an ignorant, unconscientious, or careless surveyor. As bad surveyors, generally taking less care and time in their work, can necessarily afford to make less charges than would be a fair remuneration for honest labour, this result would happen: The bad and cheap surveyors would be employed, and the good surveyors neglected by the Natives, the Government in each case alike taking care to see that the good survey was a good one, or correcting the bad one and making it a good one. The only advantage (apart from the question of revenue) which suggests itself to me as likely to result from any further imposition on account of surveys would be from the elaboration of a scheme by which the Inspector could make a demand upon the Court, supporting it with evidence of a sum not exceeding in any case—per acre, which sum would be regulated by the size of the block of land and the quality of the survey made and plan supplied by the Native suitor: in effect the demand would be regulated by the amount of trouble and expense to which he, as representing the Government, had been put. Thus the Court would judicially affix a payment in each case, variable according to the merits or demerits of the survey produced. I have known a block of 10,000 acres at Mangakabia which less required the intervention of the Inspector than a claim of one-fourth of an acre at Coromandel. The latter sold for £100, and the former for under £500; yet in one case under the Act of 1866 the duty would be 6d., and in the other £250. In the plains south of Waikato confiscation boundary there has passed through the Court a block of land containing 200,000 acres. From the open, clear, and level character of the country, and from the advantageous position of a few remarkable peaks, I am informed that the block could be profitably surveyed for £200, yet the fee for inspection under the page 31Act of 1866 to be paid on the issue of the grant would be £5,000. It will be observed that I am speaking of the sum as fixed at 6d. an acre, the highest named in the Act. It is not the amount that is so objectionable to my mind as the fact of the duty being a fixed one at all, and not dependent upon the merits or demerits of each case.

I treat it as a matter that cannot be disputed that such an officer as Mr. Heale is indispensable, and, if the Government think that the whole burden of paying the expense of his department must be thrown upon the suitors in the Court, I feel sure that all the Judges of the Court will use their best endeavours to carry out the intentions of the Legislature and collect the tax or duty imposed or to be imposed; but I think my duty calls upon me to express my clear view that any heavy imposition will diminish the revenue instead of increasing it, by keeping away business, at least during the time of this great commercial depression. When confidence revives I feel certain that the present duties will do more than defray all direct and incidental expenses of the Court I hope you will pardon me for expressing the very great pain which I have experienced from observing that the Court appears to have established itself so weakly in the regards of the Government that it is not thought of sufficient colonial importance to warrant the maintenance of a department whose present cost, as far as I know, is under £1,000 per annum, and the maintenance of which Mr. Stafford states to be indispensable to the efficient discharge of its functions.

I first proposed the scheme of converting Native titles into tenures in 1857, and Mr. Stafford's Government thought the plan worthy of being printed and published; and in 1860 I prepared a Bill for effectuating the measure, which was approved also by him and submitted to Governor Browne; and it may be that from having devoted so much time and thought to the question, and indeed having at length, I may say, made its success the object of my life, that I am inclined to attach undue importance to the ideas which it embodies. This may be very naturally the case, but I continue to think that the great majority of the reflecting people of this colony, of both races, are also impressed with the belief that this (to use a vulgar expression) is the only card that is now left to us, and that, if this cannot be played, any solution of the Maori question, except that adopted by Alexander of Macedon, is hopeless, and I need not refer to the comparison of expense, affecting not only the provinces of the Northern Island, but the whole colony.

I have always allowed myself to believe that a reasonable confidence in the Government, and a desire to abandon strife and accept British law administered in open Courts, has followed the operations of the Land Court wherever its sittings have been held. The very remarkable case of William Thompson's tribe cannot have escaped the observation of the Government. When I sat at Cambridge the great majority of the persons present were avowed Hauhaus, and constituted tribes which have been the heart of the rebellion from the commencement. It was Ngatihaua who suffered at Mahoetahi; it was Ngatiraukawa, from Upper Waikato, who were repulsed at No. 3 Redoubt; and these were the tribes who appeared almost to a man at the Court to which I have referred. It is true that there was a silent impressive contest during the first day as the old chiefs refused to be sworn or to affirm; but their moral force was not equal to ours, and they yielded. The victory of law and order was complete, and when subsequently the disturbances were renewed at Tauranga these tribes kept aloof, although intimately interested in that part of the country, and in single individuals who joined the rebels. The lapse of a little more time will, I doubt not, see these people and the Native tribes generally actively asserting their rights as against the Hauhaus, and gaining sufficient moral courage (for want of that is the defect in the Maori character) openly to resist them, and, if necessary, forcibly to expel them or oppose their interference. When this result happens the peace of the country will be secured Confidence and quiet will return when the well-disposed of a tribe take the upper hand and restrain the caprices or infatuation of a turbulent minority, but will not be secured by the internecine contests of tribes between whom ancient feuds and hereditary animosities exist.

If I am wrong in construing Mr. Stafford's letter into an expression that the Government would not maintain an efficient machinery to enable the Court to carry out the great objects for which it was established, and that a principle which is applied to no other Court must be applied to this—viz., that it must pay its own expenses immediately, in times of great adversity as well as in times of prosperity, and that the surplus which may be fairly expected when commercial confidence returns, will not be waited for—I sincerely apologize for so misunderstanding him, and shall hear with great gratification that the rapid dominion which the Court has acquired over the minds of the Maoris, and the peaceful and willing acceptance which has followed its operations everywhere, have not been unobserved or unappreciated by him or the Government. I should add that my remarks repecting the confusion of boundaries and any other surveying questions apply only to Auckland Province; no such difficulties have been experienced in Hawke's Bay or Wellington. In the latter province especially the Government surveys appear to be in an admirable state, and I gladly take this opportunity of testifying to the Government the ready and energetic assistance which I, as administrator of the Act, and the other Judges when adjudicating, have received from Mr. Webber and Mr. Jackson, the Chief Surveyors of those provinces. Those valuable public servants have left me nothing to desire in their efforts to further our operations and remove our difficulties.

I have, &c.,

F. D. Fenton,

Chief Judge.