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

(Enclosure 2 in No. 2.) — Judge Monro to the Chief Judge, Native Land Court

page 53

(Enclosure 2 in No. 2.)
Judge Monro to the Chief Judge, Native Land Court.

Auckland, 12th May, 1871.

Sir,—

I have the honour to acknowledge the receipt of your letter of the 9th February, requesting from me a report in reference to the past working, the defects observed, and the possible amendments that might be suggested in the Native Land Court Acts, under the several heads therein enumerated. It is not to be expected that so complete a revolution as is implied in the exchange of a communal and often-disputed tenure of lands held as the property of all the free members of a tribe, for one definite, personal, and subjected to at least the broader principles, if not in all cases to the technical niceties, of the real estate law of England, could be carried out over so large an area as that of the North Island of New Zealand without some occasional hardships being inflicted upon individuals in its progress; and it not unfrequently occurs, in cases such as that now under notice, that individual instances of hardship attract more immediate notice than the broader and far more important but more silent results which affect society at large as growing out of such a revolution. Hence arises, on the part of many, a disposition to overlook such results; to clamour loudly and unreasonably for a recurrence to the old order of things; and to ignore the changes in society which have made such recurrence not only undesirable but impossible. The advent of the English colonists found the Maori tribes and families in possession of certain tracts of territory, the boundaries of which were approximately settled, if not with the accuracy of survey, yet with sufficient distinctness to render any considerable encroachment upon them cognizable within such limits. It does not appear that there was any generally admitted individual and personal tenure, further than that of mere occupancy and cultivation, and certainly no indefeasible hereditary right limited to any one member of a family at all answering to our ideas of inheritance by primogeniture. A man enclosed and cultivated a portion of the common land of his tribe, and no other man had a right, to disturb either him or his family, sons or daughters, while he continued to do so. The land was theirs in occupancy, and its produce was theirs in property; but neither the original occupant nor his family had any estate in fee in the land. The communal right so existing was recognized by the Crown in the Treaty of Waitangi; but, inasmuch as it was one too much at variance with the habits of a civilized community to be adopted by the colonists, provision was made by the same Treaty for its gradual extinction in the pre-emptive right given to the Crown, which was thus made an instrument for the gradual exchange of the vague and imperfect occupancy tenure of the Maori tribes into the more definite and fuller proprietary tenure of individual citizens, whether Maori or European, which alone could be recognized by the law of a settled civil Government. It was, however, hardly possible that this system could be permanent; it had, indeed, such inherent defects that the very success of it in the commencement insured its final failure. The Crown, which was the purchaser of lands, was also the sole judge of the right of tribes or families offering, land for sale, and therefore was directly exposed to the suspicion of unfairness in extinguishing conflicting rights in proportion to the willingness of the claimants to alienate territory which was so urgently required for the purposes of colonization; while in the event of a purchase being made from a tribe not entitled to the land in question, the Crown was at once placed in the dilemma of either remaining a direct party to an act of injustice, or of having to extricate itself from that position by a, double expenditure of public money. Again, the proposal on the part of any tribe to sell, a block of land to which the fact of colonization had imparted a value previously unknown, could not always be unanimous, while it gave the signal for the revival of numbers of dormant claims, more or less well founded, and upon which there existed no independent tribunal competent to decide; and the refusal of any section of the tribe or of any of the numerous claimants to accede to the sale, or a general reluctance on their part to see what they considered as the inheritance of their fathers passing into the hands of another race, placed them in such a position of antagonism to the Government as would easily convert the non-seller first into a disaffected subject and then into an open rebel.

How far these several results have actually taken place is now matter rather of history than of speculation. At the time when the first of the Native Land Court Acts was passed by the General Assembly it had become generally acknowledged that the old system of Crown pre-emption (which, indeed, had once before been temporarily abandoned) was now absolutely effete, and that, if land was to continue to pass from the hands of the Maori tribes into these of the rapidly-increasing European population, it must be by the substitution of some other means, whereby the rights of the former could be first ascertained and determined, and converted into a legally-cognizable tenure before being transferred to the latter, while the Crown should exchange its invidious and dangerous position of a party to the transaction, buying from one and selling to the other, for the more appropriate and dignified office of judging of the rights of the sellers, and giving validity to their voluntary acts, whether of alienation or retention. If, indeed, the transfer of land had been the sole object the Legislature had in view, it might have been sufficient to have referred eases of sale only to the Court for examination and confirmation; but inasmuch as it was plain that many of the rights of citizenship are inseparable from an individual tenure of property, and that land is one of the most important species of property, it was wisely determined to make the measure more general in its application, and, as far as possible, an instrument for the conversion of the Native communal into an English proprietary tenure, which would confer upon its possessors of either race, not only the rights of owners of the soil, but those also of freeholders—in a word, of citizens.

It has, indeed, been alleged by some that the system of the Court was recommended to the Maoris mainly by its novelty—by the love of change so characteristic of a semi-civilized race; and this may have been true in the commencement; but it cannot be denied that a conviction has gained ground among them of the impartiality of the Courts, and that, when a miscarriage of justice has occurred, it is in no respect attributed either to the Judges or to the system they administer, but either to a failure to produce evidence in the process of the case, or to an unfair use of the legal power put into the hands of those in whom the Court has found it expedient to vest the land. A. comparison of the area of land purchased, under Crown pre-emption, in the twenty-four years between 1810 and 1864, with page 54that which has been passed under the operation of the Native Land Court in the six years subsequent, will prove that the present system has brought under the cognizance of English law a nearly equal area in this Island. Even did this fact stand alone as the sole result of the establishment of the Court, it would be no trifling evidence of their value; but when to this we add the increased reverence for law, and increased confidence in the judicial tribunals which are intrusted with its administration, it is difficult to calculate the value of the system in its effects upon the Native mind.

In the foregoing observations I have not considered it necessary to preserve any distinction between the first and second heads named in the letter under reply, conceiving that present results are the best criterion of its past working. Defects in the working of so entirely new a system are, of course, to be expected; and perhaps the most prominent of these is to be found in the difficulty arising from the number of claimants interested in particular blocks. Although the entire lands of any tribe were owned by the whole body of it, in its widest extent, yet sections of that tribe had their several portions of territory restricted to them by the same condition of occupancy by which the larger tribe held the larger area.

In bringing the Native Land Court Acts into operation, it was trusted that the Maoris would see the wisdom of practically allowing such subdivisions of the territory to take undisputed effect, and such has been to a great extent the case, each sub-tribe or family waiving their rights over the lands occupied by others, on condition of being allowed undisputed ownership of their own particular holdings. Thus, one much-desired result, the individualization of land title, has been advanced a great step towards its accomplishment. With a view to that end it was decided that not more than ten names should be inserted in any Crown grant made in pursuance of an award by the Land Court, the Legislature having in further view, when making this provision, the great practical inconvenience certain to result, in any subsequent transactions, from having any larger number to deal with where unanimity in action would have become essential. In many, perhaps in most, cases this provision acted, as it was desired that it should act, in causing a minute subdivision of the land, so that not more than ten persons might be interested in any special holding; but there were circumstances more particularly affecting the grassy plains of the Province of Hawke's Bay which greatly interfered with this desirable result. Here, in consequence of its physical character, the country had been occupied in much larger blocks by runholders who had made contracts with the Natives prior to the passing of the Act; illegally—i.e., in opposition to the then standing statute law—and who were naturally anxious to have their presently existing and insecure occupation exchanged, unaltered, for a legalized and sustainable tenure. Nor were the Maoris at all averse to assist towards the same end. They had for years past been receiving large rentals for their lands, and no difficulty had been found in subdividing the money so received among the respective claimants in accordance with their own determination of their respective rights, while a subdivision of the blocks would have entailed upon them increased expense of survey and trouble in receipt of rents, without a corresponding advantage, visible at first sight to them, to counterbalance these. The runs therefore were passed, in accordance with the proviso, in the names of ten claimants, in reality and equitably trustees for the benefit of themselves and of their co-proprietors, but in appearance and at strict law absolute owners of these tracts. I need not enlarge upon the abuses to which such a state of things has opened the door.

The question, how this evil may best be remedied, is a difficult one. The insertion in the grant of the name of each individual interested in it is, in practice, in many cases so evidently impossible that it may be at once dismissed. The most effectual remedy, a more complete subdivision of the land, so that no more persons should be interested in a single grant than could practically be dealt with, is in the hands of the Maoris themselves, while any system of grants with trust expressed in them, other than for public purposes, is looked upon with extreme disfavour by the present age. The registration of the names of the claimants in the Court, under the 17th section of the Act of. 1867, and the issue of a certificate only to determine the proper parties to be-dealt with, is the only remedy as yet discovered for this acknowledged difficulty.

The question of survey belongs more particularly to other officers than myself to discuss, but, without trenching upon this special province, I may remark that in my opinion it would be decidedly advantageous that the survey of the external boundaries, required by the Acts as preliminary to an adjudication, should be conducted under the immediate control of the Inspector of Surveys' Office. A more uniform and reasonable scale of charges, and much greater accuracy in avoiding overlaps and similar errors, might be insured, while greater punctuality in payment could be enforced. As matters stand, the right given to surveyors to retain a lien on the grant is, in many cases, virtually of no effect: the certificate insures the uninterrupted possession to the parties named in it, and where there is no intention to alienate they have no object to be gained by the expediting of the grant. Another complaint made of surveyors, and not without just ground, is the necessity for their attendance in Court to give merely formal answers to certain regular questions, in respect of which a certificate upon this plan, or, if deemed desirable, a statutory declaration appended to it, might, I think, be satisfactorily substituted. In cases where the evidence of the surveyor might be deemed necessary to establish any other point, he might be called by subpœna, like any other witness.

I have not touched upon the question of delay and expense incurred by useless prolongation of cases placed in the hands of agents, because the last and most flagrant instance of such a case has, in effect worked the cure of this crying abuse, and placed in the hands of the Judges themselves the power of preventing a repetition of such a scandal upon the administration of justice.

In conclusion, I would desire to remark that, so far from being averse to seeing large tracts of land alienated from their aboriginal occupants and passing into the hands of the European colonists, I have always looked upon the wide extent of the uncultivated holdings of the Maori as a curse to them rather than a blessing; and I maintain that every legitimate encouragement should be held out to them to part with their surplus lands to those who can make the use of them for which they were intended, care being taken that each Native has ample land secured to him for his own maintenance.

I have, &c.,

Henry A. H. Monro,
Judge, Native Land Court.

The Chief Judge, Native Land Court.