Wai 64, Doc HA16

Report to the Waitangi Tribunal on Matters of Relevance to the Chatham Islands Claims Wai 64, Including the Intervention of the Government in the Affairs of the Maori Land Court )

by Grant Phillipson

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April 1994 . ,.

WAITANGI TRIBUNAL

CONCERNING the Treaty of Waitangi Act 1975

AND Wai 64 - The Chatham Islands claim .

DIRECTION COMMISSIONING RESEARCH

1. Pursuant to clause 5A(1) of the second schedule of the Treaty of Waitangi Act 1975, Grant Phillipson of Wellington is commissioned to prepare a report on tQe following matters in respect of the Chatham Island claim. The report should cover the following matters:

• An examination of matters which came to the attention of the Government and which highlighted possible injustices to Moriori e.g. complaints from Moriori to the Governor, recorded information from missionaries and government officials. The extent, if any, to which gover~ent intervened • on Native Land Court decisions, and the nature of those interventions. e.g. ( select committees special legislation (setting up of Royal Commissions etc.) Chief Judge's orders ,~.g. Maori Affairs Act Orders in Council '\

2. This commission commenced 1 March 1994 and ends on 30 April 1994 at which time a draft of the work completed (in word perfect format) will be filed.

3. The report may be received as evidence and the comrnissionee may be cross examined on it. 4. The Registrar is to send copies of this direction to Claimants & counsel Interested third parties Crown Law Office Grant Phillipson Treaty of Waitangi Policy Unit National Maori Congress NZ 1-1aori Council

Dated at wellington this day of April 1994

Chief Judge ETJ Durie Chairperson WAITANGI TRIBUNAL

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\ ACKNOWLEDGEMENTS

I would like to acknowledge the assistance of Dean Cowie, a commissioned researcher for the Waitangi Tribunal, who assisted me with the research for Part II of this report. I would also like to thank the Wai 64 claimants, who provided me with copies of some of the primary documents used in the preparation of this report.

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1 INTRODUCTION

This report was commissioned on r March 1994 and the commission is contained in a direction dated 14 April 1994. The aim of the report is to examine two topics of significance to Wai 64: the extent to which the government was made aware of a situation of possible injustice on the Chatham Islands which required its intervention; and the intervention of the government in the general practice and individual decisions of the Native Land Court. I was asked to prepare a series of examples of such intervention from different periods of the history of the Court, rather than a connected narrative and analysis of this topic.

THE AUTHOR

My name is Grant Phillipson and I completed a Ph. D. in New Zealand history at the University of Otago in February 1992. My thesis included aspects of race relations history I which I expanded as a Research Fellow at the Macmillan Brown Centre for Pacific Studies in 1992. In 1993 I worked as an historical researcher for the Crown Congress Joint Working Party I and prepared reports on the traditional history of the Marlborough region and on the operations of the Native Land Court in Hawkes Bay. I became a commissioned researq{ler for the Waftangi Tribunal '\ in July 1993 and have been working on the Rangahaua Whanui project since that date. In January 1994 I joined the permanent staff of the Waitangi Tribunal Division.

2 PART I WAS THE GOVERNMENT AWARE OF A SITUATION OF POSSIBLE INJUSTICE ON THE CHATHAM ISLANDS WHICH REQUIRED ITS INTERVENTION?

I

The acquisition of sovereignty in the various territories of New Zealand was a long and tortuous process. On 6 February 1840 the Queen's representative signed the Treaty of Waitangi with the chiefs of the Confederation of the 'United Tribes of New Zealand', a grand sounding name for a group of Ngapuhi chiefs who had (according to the British Resident and a few missionaries) formed the United Tribes in response to French territorial ambitions. The Governor's appointees took the Treaty to other North Island communities for signatures, while a government officer made his way to the South Island to investigate whether its supposedly backward tribes were capable of a reasoned assent to the Treaty. Even as Major Bunbury took the Treaty around the

South Island, however I Governor Hobson's hand was forced by French colonists and he made a Proclamation of sovereignty over that island before the results of Bunbury's mission were known. 1 ( The Chatham Islands were not included in either of the proclamations which in legal terms established the Queen's sovereignty over New Zealand, and n9,r was the Treci:ty of Waitangi '\ taken there for Maori or Moriori to sign. Nevertheless I the Colonial Office took the view that the exclusion of the Chathams was an oversight, based on incorrect degrees of latitude and longi tude in the original documents prepared in London. The Secretary of State amended the Letters Patent of the Colony to include the Chathams Islands in 1842, after the situation had been brought to his attention by the activities of the New Zealand Company.2 When the New Zealand Attorney General raised the question of whether Maori communities which had not signed

1 C. Orange, The Treaty of Waitangi, Wellington, 1987, pp. 19-23, 77-92.

2 P. Burns, Fatal Success: a history of the New Zealand f' '. Company, Wellington, 1989, pp. 243-245. ~ 3 the Treaty were subject to the sovereignty of the Crown in 1843, the British law officers argued that the legal sovereignty of the Crown rested on these Letters Patent and-Proclamations. 3 After this the New Zealand Government acted as though all Maori had ceded their sovereignty and were therefore parties to ( and protected by) the Treaty of Waitangi. The exercise of British sovereignty over the Chathams, and the protection of its 'Aboriginal' inhabitants by the Treaty, may be dated from the Letters Patent of 4 April 1842. The inclusion of the Chatham Islands within the territory of New Zealand was a deliberate act undertaken in London by officials of the British Government. When the Colonial Office discovered that the New Zealand Company had bought the islands after the introduction of pre-emption, and were now in the process of selling them to a German company for German settlement, they intervened and obtained a legal opinion that the Company's purchase was invalid. They followed this by amending the colony'S Letters Patent to include the Chatham Islands. 4 The New Zealand Government, however, proved less eager than the Colonial Office to obtain authority over the Chathams. Governor Hobson's tiny administration was already overstretched in 1842, and had no wish to add the distant Chathams to its overwhelming commitments. When the Company took advantage of the islands' exclusion from the colony to purchase them in 1840 I ~ ,the New Zeal~nd Government '\ accepted this willingly and gave the Company a charter to administer the Chathams. This charter was cancelled by the amendment of the Letters Patent in April 1842, and the government of the islands became the responsibility of the Governor of New Zealand and the Colonial Office in London. 5 The government took no action to assume this responsibility from 1842 to 1855. This was in line with its Maori policy during

3 Orange, pp. 110-112.

4 Burns, pp. 243-245; B. Mikaere & J. Ford, 'A preliminary Report to the Waitangi Tribunal on the claims relating to the Chatham Islands', October 1993, Wai 64 A-8, pp. 38-42.

5 M. King, Moriori: a People Rediscovered, Auckland, 1989, pp. 73-75.

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the years of Crown Colony Government, when predominantly Maori districts with a handful of settlers, engaged in peaceful leasing and trading, were left to their own devices. The Chatham Islands were simply the most distant of a number of regions in which the Crown made no effort to exercise its sovereignty. As the boundaries of colonisation expanded, however, Resident Magistrates began to make circuit tours through predominantly Maori districts, offering mediation and court hearings to those who could be persuaded to accept a government officer as a mediator or even (usually in Maori-Pakeha cases) an authoritative judge. 6 The expansion of the Resident Magistrate system under Governor Grey finally reached the Chathams in 1855, thirteen years after the assumption of sovereignty, when Archibald Shand accepted appointment as Resident Magistrate for the islands. British law had so far held no sway over the Maori population, which amounted to about 300 Maori and 205 Moriori in 1855, or over the 64 'settlers' of various nationalities who were mainly former sealers and whalers. 7 Although there had been no government representative on the islands over the previous thirteen years, the Governor and his ( officials could not have been entirely ignorant of the situation on the Chathams and the plight of the Moriori people. The New Zealand Company could have provided the Governor with detailed information after its expedition -tn 1840, and ·'the Company's naturalist, E. Dieffenbach, published'his account of the Chathams in the early years of the decade. 8 The Governor could also have consulted the Rev. J. Aldred, a Wesleyan missionary who visited the Chathams in the year in which the colony became responsible for the administration of the islands. 9 The most likely source of information in the 1840s, however,

6 A. Ward, A Show of Justice: racial' amalgamation' in nineteenth-century New Zealand, Auckland, 1973, pp. 72-91.

7 King, p. 94.

8 ibid., pp. 67, 74-75.

9 S. Natusch, Hell and High water: a German occupation of the Chatham Islands, 1843-1910, pp. 30-35. G 5 may have been the -redoubtable Bishop Selwyn, who visited the Chathams in 1848 as part of an intensive tour of his vast diocese. The Bishop was determined that injustice and the 'inevitable doom' of extinction would not be allowed to take place quietly to the Maori people of New Zealand, and considered it his duty to declare the facts to the government and the public. He had no sympathy with the idea that aboriginal populations would inevitably decline in the face of the diseases and superior culture of the 'civilized invader' and urged the government to take active measures to halt the decline.

Mr. Roebuck [a British MP] with the tender mercies common to "liberals" has doomed this native people to destruction; and stated the duty of England to be merely to make their inevitable doom as little painful to them as possible. I wish I had an opportunity of telling him to his face; that I have already enrolled [sic] the names and places of abode of more than half of the men, women & children of these islands, from the Northern Tribes of the Ngapuhi to the farthest Northwestern corner of Stewart's Island, and that, if it shall please God to prolong my life, I hope to be able to take care that none of those damnable crimes, by which the coloured races of other lands have melted away before that pest which he calls civilization, shall be cloked [sic] under the name of a decree of Providence or an inevitable law of nature. I hope to be able to report, how every New Zealander comes to his end; an enquiry, I can assure him, which is' 'a~ easy and certain on the shores of Lake Taupo, as in the streets 0 Auckland. We will leave him none of his "mysterious dispensations" to veil the neglect or violence of the civilized invader.1o

The German missionaries, who distrusted Selwyn and who did not have the ear of the Governor, reported angrily in 1849 that the Bishop had discussed the Chathams with Governor Grey. They believed that he had influenced the Governor against them, but at the same time he must have informed Grey of the Moriori

10 G.A. Selwyn to W.E. Gladstone, Auckland, 15 September 1846, Selwyn's Letters to Gladstone, Micro MS. 426, W:Tu.

6 situation on the -islands. 11 The Bishop's account was also published by the Society for the Propagation of the Gospel in 1849, and became available to the public -in the colony through r Selwyn and his High Church supporters. It provided some contrast \ to Dieffenbach's stark picture in 1841, which was written before the conversion of the Ngati Tama and Ngati Mutunga conquerors. Dieffenbach reported that the Maori treated their slaves very cruelly and starved them, 'so that ulcerated backs bent almost double, and emaciated paralytic limbs, with diseased lungs, are the ordinary lot of these ill-fated wretches'. 12 The Bishop believed that conditions had improved by 1848 and that Anglican Maori no longer mistreated their slaves. He reported, however, that slavery was still in full force and was manifestly a great 'evil'. He took a census of the Moriori and concluded that they were 'rapidly decreasing' because of the high death rate and very low number of births. He reported that the low birth rate was partly caused by the fact that Moriori did not take partners and start families, but may not have been aware that this was the resul t of a Maori injunction against them doing so. 13 Thus, Bishop Selwyn reported the plight of a group of British subjects kept in slavery and facing extinction through causes capable of ( some remedy in the 1840s. Governor Grey saw the Moriori situation for himself two years later, when he visited the ~N,gati Mutunga·' settlement on '\ Auckland Island. Although he never went to the Chatham Islands, the Governor spent a week with this expatriate Chathams community and would have seen at first hand the relationship between the Maori and their thirty or so Moriori slaves. 14 The Governor was also a frequent visitor to St. John's College in Auckland, where

" Natusch, p. 129. (doc 1.1)

12 cited in King, p. 67.

13 G.A. Selwyn, 'New Zealand Part V: a Journal of the Bishop's Visitation Tour through his Diocese, including a visit to the Chatham Islands, in the year 1848', Church in the Colonies, no. 20, London, 1849, pp. 98-99. (doc 1.2)

14 King, p. 85.

7 he would have met a -Chathams chief called Wi Naera Pomare and his Moriori slave - the combined persuasions of the Bishop and his staff could not end the relationship of servitude between slave and master. 15 M. King suggests that Grey would also have received a great deal of information about the conquest and state of the Chathams from the Maori point of view, from his secretary Hane Te Rau (Jane Brown) who accompanied him to South Africa in 1854. Hane Te Rau was the adopted daughter of a prominent Chathams rangatira, Apitea Punga, and sister-in-law of another, Wi Naera Pomare. 16 From Selwyn, Hane Te Rau, his own visit to Auckland Island, and no doubt other sources, the Governor of New Zealand must have been aware of the situation on Wharekauri­ Rekohu during the late 1840s and early 1850s. Nevertheless, the government took no action in response to these varied sources of information about the Chathams until the appointment of a Resident Magistrate in 1855. This was partly because the government perceived a fine balance between its duty to impose British law and suppress 'savage' customs, and the practical realities of its power in the face of Maori military strength and geographical dispersion. Lord Normanby instructed Hobson to impose British law in a gradual manner:

until they can be brought wi thin the pale of Civilized life, and trained to the adoption of its habits, they [the ,~aori] must ~'be carefully defended in the observance of their own customs, so far as they are compatible with the universal maxims of humanity and morals. But the savage practices of human sacrifice, & of Cannibalism, must be promptly and decisively interdicted. Such atrocities, under whatever plea of Religion they may take place, are not to be tolerated within a~ part of the Dominions of the British Crown ...'

15 R.A. Cecil, Marquis of Salisbury, Journal of a Visit to Auckland, describing St. John's College etc., July 1852, qMS.P.Cec. 1852, W:Tu.

16 King, p. 114.

17 Normanby to Hobson, 14 August 1839, GBPP 1841, p. 88. (doc 1. 3)

8 Hobson enquired exactly how he was meant to suppress such customs, and widened the field to include tribal warfare and the necessity to 'protect tribes who are oppressed (probably for r \ becoming Christians) by their more powerful neighbours,.18 The Colonial Secretary suggested that a common sense of morality between the races might suffice, once the Maori had been 'taught to perceive with what abhorrence such usages are regarded by civilized men'. It was certainly the case that Maori opinion about appropriate behaviour was changing on the Chathams under the impact of European contact. After the Christian conversion, for example, Maori no longer practised cannibalism or murdered any of their Moriori slaves (by act of commission), and this gradual change in Maori mores continued in the 1850s and 1860s. There was always some common ground, therefore, for the employment of "moral suasion" on the Chathams. Nevertheless, the

Colonial Secretary authorised the use of for~e if necessary to suppress 'practices so abhorrent from the first principles of morality' .19 Although Normanby did not mention slavery in his examples of 'savage practices', the Treaty of Waitangi guaranteed all the rights of British subjects to the 'Natives of New Zealand'. When Lord Stanley prepared instructions for Governor Grey in 1845, he {ordered the Governor to 'scrupulously fulfil the conditions of the Treaty of Waitangi' and to 'omit, no measure wLthin the reach '\ of prudent legislation, or of a wise administration of the law for securing to the Aborigines the personal freedom and safety to which they are entitled'. Once again, however, the Colonial Office advised the government to allow for 'the opinions, the feelings, and the prejudices by which they [the Maori] may be possessed, and from which they cannot be rudely or abruptly divorced' so long as these were not 'in themselves opposed to the

18 Hobson to Under Secretary of Colonial Office, August 1839, GBPP 1841, p. 91. (doc 1.4)

19 Normanby to Hobson, 15 August 1839, GBPP 1841, p. 93. ( (doc 1. 5 ) w'/

9 fundamental laws of· morality' .20 The government had four main avenues for carrying out these instructions and obtaining Maori obedience ·or co-operation in the 1840s and 1850s. Firstly, it could employ all the various arts and strategies of "moral suasion", which involved the diplomacy and oratory of a wide range of government officials and allies, from protectors and missionaries in the early period, to Resident Magistrates and chiefly Assessors in the latter decade ~ Officials and their allies negotiated with chiefs and hapu, spoke at hui and influenced community decision-making, offered their services as arbitrators or as executors of 'the law', and used all manner of diplomacy and ploys to create and maintain mana for the Crown. As FitzRoy put it:

An old tattooed chief, though smeared with red ochre, wrapped in a dirty blanket, and with feathers stuck in his head, like Rauparaha, Rangihaiata [sic], Kawiti, Teraia, or Heuheu, will be found as keen a lawyer (in native usages and common sense) and as proud a democrat as may be met within the precincts of Westminster. You may reason with these men, and may convince them, if you have justice as well as truth on your side; and further, you may move them out of their intended course, if not against their self­ interest; but, to drive - to coerce them - will be most difficult. 21 ., One of the more useful adjuncts to 5u'Ch "moral suasion" was the policy of financial suasion, in which government officials used bribes, gifts, patronage and official salaries, pensions, and even land purchase payments, in order to build up a body of client chiefs and to reward political support and the new forms of appropriate behaviour.~ If these two forms of suasion proved insufficient to secure

~ Stanley to G. Grey, 13 June 1845, GBPP 1846, p. 230.

21 R. FitzRoy, Remarks on New Zealand, London, 1846, p. 56. See also, for example, G. Clarke, Notes on Early Life in New Zealand, Hobart, 1903, p. 28.

22 ego G. Grey to Earl Grey, 26 March 1847, 1847-48 [892], p. 8; FitzRoy to Gipps, 13 July 1844, GBPP 1845, p. 357.

10 Maori obedience, the government sometimes resorted to economic sanctions, such as FitzRoy's effort to blockade northern Maori during the crisis of 1844-1845. 23 After Grey's arrival and an increase in the Crown's financial and military resources, it was easier for the governor to proceed to the threat or reality of military sanctions, although only in selected places and against a limited number of communities at a time, and even then in conjunction with a body of Maori allies or a wide state of regional neutrality. 24 If the government took a situation seriously enough, it would use one or all of these methods to enforce its will. The situation of Moriori slavery and oppression on the Chathams was not a priority for the government, despite its instructions for 'securing to the Aborigines the personal freedom and safety to which they are entitled'. 25 Hence, the Governors took no action at all on the Chatham Islands for the first thirteen years of their official responsibilities there. When the government did intervene in 1855, it chose to act only through moral suasion and an extremely limited financial largesse, appointing a Resident Magistrate whose only patronage was the power to lease a small government office and appoint one or two ( chiefs as constable/tidewaiters. The central government expected its new Resident Magistrate, A.W. Shand, to administer British law on the islands, but was probably more conce~ned about his ". '\, role as a customs officer. The development of smuggling through the Chathams was a major concern for the Customs Department in the mid-1850s, and this concern was probably the main impetus behind Shand's appointment in 1855. 26 Even so, his appointment was a half-hearted affair and it took the central government a

23 FitzRoy to Beckham, 15 January, 22 February, & 6 March 1845, GBPP 1845, pp. 548, 551, 555.

24 See I. Wards, The Shadow of the Land, Wellington, 1968, passim.

~ See above, p. 9.

~ R. Richards, Whaling and Sealing at the Chatham Islands, ( Canberra, 1982, p. 31. .~ 11 long time to provide him with the appropriate official powers. 27 The new Governor was 'anything but pleased at anyone being appointed here', but eventually the government had to face up to its responsibilities and negotiate some sort of agreement between Crown and Maori that would permit Shand to exercise his new and essentially alien powers on what had supposedly been British territory since 1842. 28 Unfortunately the details of this agreement are obscure, but according to the German missionaries the Crown's representative, S. Carkeek, guaranteed the Maori chiefs' title to Chathams land. Natusch cites the missionaries' claim that the government had succeeded to the New Zealand Company's title to the islands, which it now graciously returned to the Maori in return for their acceptance of Shand and his authority:

The Commissioner also was empowered to offer to the Inhabitants to embrace British Law and free the Moriories from Serfdom, from which the Government would sanction to the Maories their right and title to the Island and declare null and void the purchase of the Company. These conditions were agreed on b1 the Commissioner and the Maories in January '57. 2

According to Shand, one of the main reasons for Maori hostility to his appointment may have been a fear that British ' .. law on the islands would be made retr~active, not merely to 1842 but even further back to the Maori conquest of 1836 and the events which followed it. When the new Resident Magistrate investigated Moriori beach burials, he was ' frequently interrupted by enquiring Maories to know what I was after - & with protestations often that they were not the murderers of [the

27 Shand was not sworn in as a Resident Magistrate until January 1857.

28 A.W. Shand to E. Catchpool, Chatham Island, 19 January 1856, E. Catchpool Papers, MS Papers 77/6, W:Tu. (doc 1.6)

29 cited in S. Natusch, Hell and High Water: a German occupation of the Chatham Islands 1843-1910, 1992, p. 110. (doc 1. 7)

12 Moriori] even before I taxed them with being so' .30 The Moriori, on the other hand, found cause for hope in Shand's interest, and looked to him for protection. 31 Their hope was justified to the extent that the central government now received a series of reports from its official representative, outlining the state and condition of both Maori and Moriori in the late 1850s and early 1860s. 32 Shand was particularly frank about the nature of slavery 'in this Christian land', and quick to dispel any comfortable illusion which Bishop Selwyn might have created about the improvement of conditions since Dieffenbach's visit in 1840. In 1855 Shand wrote to a Customs Office official, who was also a personal friend, that a Moriori slave pinned under a fallen tree had lain there without food or shelter for three days. When the magistrate instructed his 'master' to go and fetch a doctor, the chief refused and Shand had to go for medical help himself. Families were broken up with great callousness, young Moriori were not allowed to marry and have children, and personal possessions were subject to plunder by master or any ot~er person who felt inclined to punish a slave. 33 The Resident Magistrate reported these conditions to both Bishop Selwyn and the central ( government in New Zealand. Shand soon found his position as Resident Magistrate and Collector of Customs very galling, a~ neither MaOl?i nor settlers '\ obeyed his authority in either capacity. Shand was particularly upset at his powerlessness to enforce the law as a magistrate, or to use his office to protect the Moriori or improve their lot. He believed that the Moriori population might recover if they

30 A.W. Shand to Catchpool, Waitangi, 16 October 1855, MS Papers 77/6. (doc 1.8)

31 ibid.

32 See Shand's official correspondence in National Archives, Christchurch. Unfortunately I was not able to consult this correspondence, and have relied on M. King's report of its contents. See King, pp. 88, 93-97, 217, & passim.

33 A.W. Shand to Catchpool, Waitangi, 16 October 1855, MS ( Papers 77/6. (doc 1. 8) '-vv' 13 were freed from slavery, but he could not persuade Te Atiawa to free their slaves, or prosecute them for assault if they mistreated their slaves. He relied on Maorl chiefs as constables to provide the physical and social sanctions that would enforce the law, and these chiefs 'could not, or would not interfere,.34 His warrants for arrest were ignored by offenders and constables alike. In 1858 Shand seemed to make a break-through when a hui of chiefs agreed to accept British law and release their Moriori slaves, but none of them acted on these promises and Shand continued to send alarmed reports to the central government. In 1859, for example, the rangatira Matioro recaptured a Moriori slave who had escaped in order to marry a Kaingaroa Moriori man, and took her back by force to his own home. The Magistrate instructed the local constable, Toenga Te Poki, to prevent Matioro from abducting this woman but Te Poki took no action. 3,5 Shand appealed to the New Zealand Government for help in enforcing his authority, but the Native Department ignored his appeals. This state of affairs was partly the normal situation for Resident Magistrates in frontier districts. The government expected magistrates in Maori regions to administer "the law" through co-operation and consent, since they could provide little or nothing in the way of coercive sanctions during the 1850s. A successful Resident Magistrate was ~upposed to obtain influence '\ and respect through force of character and his usefulness as an arbitrator, but Shand was not able to win such respect from settlers or Maori on the Chathams. 36 Almost all of his Maori deputies ignored his commands and broke the law themselves, and Shand was continually threatened for real or imagined offences,

34 A.W. Shand to Govt, 25 January 1859, cited in King, pp. 95-96. (doc 1. 9) 35 King, pp. 88, 93-97.

36 ibid. See also Ward, pp. 75-83, 108-113. 14 and lived in fear of his own and his family's safety.37 There is some suggestion, however, that the government treated the Chathams as a distant and unimportant problem, and gave Shand less.support than they might have given to closer magistrates in ',:' more:£Irtportant districts. In May 1860, for example, the Resident Magistrate complained that the government had not written to him for over a year, and that he received neither official nor private encouragement and support. 38 He did not even fin

D King, pp. 94-96, (doc 1.9); Shand to Catchpool, Kaingaroa, Chatham Island, 11 May 1860, MS Papers 77/6. (doc 1.10 )

38 Shand to Catchpool, Kaingaroa, 11 May 1860, MS Papers 7 7/6. (doc 1. 10 ) 39 ibid.

40 King, p . 97.

15 their Maori conquerors'. 41 He was very sympathetic to the Moriori plight, but reported that there had been some improvement in their conditions since the appointment of Shand. He suggested that physical abuse was now a thing of the past, and that the Moriori were now allowed to cultivate a little land for themselves. 42 Shand later remarked that this change was not as significant as it might seem, since Moriori felt little inclination to labour hard over land and crops that might be resumed at any moment by their Maori masters. 43 Seed asked the government to provide technical assistance to Maori/Moriori agriculture, and he recommended his superiors to compare his census figures with the 1848 census of Bishop Selwyn, in order to 'ascertain the exact rate of decrease' .44 Seed's recommendations were ignored and Shand struggled on without relief until his replacement in 1863. 45 According to William Seed's report, 'the Maories appeared to exercise a most suspicious vigilance over their [Moriori] actions, and rarely left them a moment alone to talk with me,.46 Moriori appeals for manumission and the return of their land, therefore, took place with the full knowledge of their Maori conquerors. Shand noted that this sometimes led them to 'suppress many details that would provoke offence with the Maories, from whom they cannot even keep their own counsel,.47 Nevertheless,

Moriori had sufficient political fr.~edom in the early 1860s to act together as an iwi, and to appeal directly to the New Zealand Government for 'justice'. In March 1862 they asked Shand to send

41 W. Seed, Report of the Landing Surveyor, 21 October 1861, New Zealand Gazette, 1862, p. 27. (doc 1.11)

42 ibid.

~ cited in King, p. 115.

« W. Seed, Report, NZ Gazette, 1862, pp. 27-28. (doc 1.11) 45 King, p. 98.

46 W. Seed, Report of the Landing Surveyor, 21 October 1861, New Zealand Gazette, 1862, p. 27. (doc 1.11)

47 Cited in King, p. 115. (doc 1. 12 ) 16 their congratulations to the new Governor, Sir G. Grey, and to assure him that 'they depend on the Governor's high consideration and sense of justice to grant them a share of any advantage he may be pleased to bestow on the dominant tribe of Maoris'. They asked him for missionaries, schools, doctors, 'a certain apportionment of land for their special behoof', and freedom from slavery.48 In April 1862 they sent petitions to the government (which have not survived) asking for land of their own", free from the threat of Maori repossession. W In June and July 1862 the Moriori elders held a great council at Te Awapatiki, a place redolent with great symbolism and history, and prepared a long petition to Governor Grey. This petition has survived in two version: an unpublished manuscript in the Grey Collection; and a shortened version published in the TPNZI by Gilbert Mair in 1904. 50 The thrust of this petition was no longer to ask for grants of land as a boon, but to construct an argument that Moriori were still entitled to land as of right, since their mana under customary law had survived the Maori invasion intact. According to the 'laws, manners, and customs of the Morioris, derived from their ancestors', it was 'very evil to cause the death of another, or to take from a man his land'. ( The Maori conquest and seizure of land was 'quite opposed to their [Moriori] customs' . The petition also stressed that Moriori had maintained their customary ~i!-w to the bItter end, by deliberately choosing not to fight th~ Maori at the 1835 council of Te Awapatiki. They could not, therefore, recognise the legitimacy of the Maori conquest. 51 Moriori declared that their acceptance of Christianity and British law strengthened their case, as neither of these

48 A. Shand to Colonial Secretary, March 1862, cited in King, p. 115. (doc- 1. 12 )

49 Shand to Colonial Secretary, April 1862, cited in King, p . 115. (doc 1. 12 )

50 See extracts in King, pp. 113-119, (doc 1.12); G. Mair, 'The Early History of the Morioris: with an Abstract of a Moriori Narrative', TPNZI, 1904, pp. 158-161. (doc 1.13)

51 Mair, pp. 158-161. (doc 1.13)

17 institutions could uphold the Maori claim by right of conquest. They wrote to Grey:

Friend, greetings to you with the law of England and the law which comes from the Scriptures • . . England holds the cause of God and a cannibal people cannot rise above nor refute the law of England because God is the source of Pakeha law . • . The rights of the Maori are not straight, they are stealing the rights to our land. It was not right and the payments before [rents] were not right, but the rights to our islands are with us. We are the original inhabitants . . . the law says that land taken unjustly must be returned to those whose it was before. Enough, come to set this island right . . . the doings here are not in accord with the law. 52

In addition to the long petition of July 1862, one Moriori chief wrote to complain of the continued state of slavery, and in August three Moriori elders sent yet another impassioned appeal to Grey: Friend Governor Grey, Greetings to you in the laws of the Gospel of God, the might of the Queen, in love and in peace. Friend, this is a request from us that you come here. You must bring us the law of England. We, the Moriori, are living without the law. Come here so that you may meet the remnants of the Moriori elders. For your documents have come to us - that is to Tapu - hence our request to you to come and save us. The Maoris still hold to the law of enslaving the Morior~. This is another thing. Our lands are being taken by the Maori - they have completely taken over the ownership of our land. It is not us who are sending it off. Although the faith has come, evil stands in our way. But what we want of you is that you come and ship the Maori back to their home in Taranaki. 53 No written responses from the government have survived, but Shand was recalled in 1863 and replaced by a more effective Resident Magistrate, Captain W.E. Thomas. The new magistrate

52 Hirawanu Tapu & 29 Others to Sir G. Grey, July 1862, GNZMS 144, cited in King, p. 117. (doc 1.12)

53 Timoti Tara & 2 Others to Grey, August 1862, cited in King, p. 118. (doc 1.12) 18 summoned a hui of Maori and Moriori and announced that slavery was at an end, and that the government would definitely punish anyone who tried to keep their slaves. -54 This hui was more effective than the one called by Shand, possibly because the central government seemed to be taking more of an interest in the Moriori and their plight. As the elder Minarapa told Henry Halse in 1867, the Maori 'are kind to us now because they think you

Pakehas would support us'. Hakopa suggested the same reason: I the difference of the treatment now received was owing to a conviction that the Government would eventually assist the Morioris,.55 It may have seemed to both sides that Grey, always a force to be reckoned with by Maori rangatira, was about to crush Te Atiawa resistance in Taranaki and might well give his support to the reinstatement of Moriori under 'the law of England', which 'says that land taken unjustly must be returned to those whose it was before'. 56 Furthermore, Thomas was more successful than Shand at the arts of "moral suasion", as W. Rolleston reported in 1868: 'With regard to the general control exercised by Captain Thomas in the Chatham Islands, I may state that so far as I could learn from personal observation, his ( kindliness of manner and honesty of purpose, have won him considerable influence among the Natives; and the way in which he discharges his duties to both races appears satisfactory' .57 \ The majority of Moriori were probably released from slavery in 1863, although Thomas' success was not as far reaching as it seemed on the surface. Henry Travers visited the islands in 1864, and reported to his father that some of the Moriori were still being held as slaves, and that their population was 'rapidly decreasing'. This information became public knowledge when

~ King, p. 118. (doc 1.12)

55 H. Halse, Report on the Chatham Islands, AJHR 1867 A-4, pp. 5-6. (doc 1. 14 )

~ See above, p. 18.

57 W. Rolleston, Report on condition of Native Prisoners at - the Chatham Islands, 3 February 1868. AJHR 1868, A-I, p. 34. (~ 19 1 }

Travers reported it -to the Canterbury Philosophical Institute and published it in the proceedings of the New Zealand Institute in 1868. 58 When the bulk of the Maori population returned to Taranaki in 1867-68, they took an unknown number of Moriori slaves with them, and B. Gilling also noted cases in which Moriori women were retained as slaves by Maori men. 59 Some slavery continued despite the government's supposed hardline, therefore, but Moriori felt sufficiently encouraged to believe that British law was about to redress their other grievances against the Maori. It is not clear whether government officials encouraged them in that belief. Captain Thomas seems to have maintained a neutral stance on the issue of land rights, especially when it was known that the Native Land Court would eventually come and sort it all out.~ M. King claims that Henry Halse, however, 'assumed that the Moriori would get a fairer share of Chathams resources if land ownership was defined and Maori and Moriori blocks differentiated from one another,.61 If King is correct in his assessment of Halse's opinion, then this senior Native Department official may have communicated such a view to Moriori during his visit to the Chathams in 1867, when he tried to drum up support for Native Land Court hearings on the islands. Moriori held another council at Te Awapatiki in 1864, at which they defined their own inter~~ts in the main and outlying '\ islands, and asked the government to recognise and endorse these rights to the land. 62 The central government took no further action, however, until the growing crisis in Taranaki seemed

58 H.H. Travers, 'On the Chatham Islands', TPNZI, 1868, vol. 1, p. 121. (doc 1.15)

59 King, pp. 123, 133; B. Gilling, 'The Native Land Court in the Chatham Islands: a report to Te Iwi Moriori Trust Board', 1993, Wai 64 A-10, p. 63.

~ Capt. Thomas to Colonial Secretary, Chatham Islands, 23 June 1870, RM's Record Book, JC-CI/1, National Archives. (doc 1.16 ) 61 King, p . 120.

Q Cited in King, p. 119. 20 about to be affected by the mass departure of Ngati Mutunga and Ngati Tama from the Chathams. While the Moriori held their council and asked Thomas to 'look after - our lands', their Te Atiawa neighbours were preparing to return to their ancestral homes and prevent the confiscation of their land. The government invoked the Passengers Act and prevented the would-be migrants from chartering a ship to take them home. 63 Ngati Mutunga and Ngati Tama remained on the Chathams, therefore, in 'uneasy co­ existence with their former slaves, some of whom had begun to reoccupy their ancestral settlements and establish a title to the land through repossession. Some chiefs tolerated this process, but others (such as Apitea Punga) moved their former slaves onto spare land which they designated as Moriori reserves. Evidence from the later Land Court sittings suggest that the Maori sought to forestall Moriori claims by giving them land for their subsistence. 64 Two separate forces came together in the late 1860s to provoke further government action. In 1867 the Native Department sent Henry Halse to the Chathams to investigate the possibility of Native Land Court sittings there, and to 'explain' to those Maori 'who are reported to be about to migrate to Taranaki with ( the intention of settling there . . . that they will gain nothing by adopting this course'. He was authorised to promise that the government would 'consider their c~~ims in commoi with those of other absentees and award them compensation'\ as they have been previously informed'. 65 According to King, Halse' s mission was prompted partly by the Moriori petitions and the pressure of Governor Grey.~ The government's instructions did not mention the Moriori and used the generic term of 'Natives', but Halse certainly made an effort to include the Moriori in the consultation process and obtain their consent for Native Land

~ Mikaere-Ford, p. 33.

64 King, pp. 123, 13l.

65 W. Rolleston to H. Halse, 22 March 1867, cited in Gilling, pp. 35-36.

~ King, p. 120. 21 Court hearings to decide the points at issue between themselves and the Maori. 67 The real urgency of the matter, however, probably came from government concerns about Taranaki, although Gilling points out that this is implicit rather than explicit in official documents of the time.~ Halse's report in 1867 was one of the few official Chathams papers which Parliament considered important enough to call for tabling and publication. The report included summaries' of Halse' s meetings with Maori and Moriori, and recorded differing views on entitlement under customary tenure. Halse began by informing claimants that he had come 'to ascertain how they were getting on, and the terms on which they were living with one another', and that because several claims to land had been received by the government, it would be necessary for the Native Land Court to establish its customary owners. Hirawanu Tapu stated that 'We do not know whether the land belongs to the Maoris or to us' but protested that the Native Land Act as 'read by you is only understood by the young men who have been to school,.69 Moriori made their position clear whenever an opportunity arose: the land belonged to them and the Maori were 'strangers'; the Maori treated them much better now, but mainly from 'a conviction that the Government would eventually assist the Morioris'; and their population was declining so rapidly that they saw little hope for the future. 70 Halse responded with pity and sympathy, but his main object was to secure a univer~~l consent to a preliminary survey of the land, and Gilling criticises him for not attempting to explain more fully the exact way in which the Native Land Court was likely to assess customary title, and in particular for not mentioning the 1840 Rule. 71 This was particularly significant in light of the fact that Moriori admitted that they

67 AHJR 1867 A-4, pp. 3-6. (doc 1.14)

~ Gilling, p. 36.

69 AJHR 1867 A- 4, p. 4. (doc 1. 14 )

70 ibid. I pp. 4-6.

71 Gilling, pp. 40-41.

22 did not understand-the Native Land Act, and had earlier placed their faith in 'the law of England' - 'the law says that land taken unjustly must be returned to those- whose it was before. Enough, come to set this island right . . . the doings here are not in accord with the law'. 72 Halse encouraged the Maori to remain on the islands, and clearly led them to believe that they would be substantial beneficiaries of the Chathams land: 'I replied "That no advantage would be gained by going there [Taranaki]. This land was good, and this harbour was good, - provisions were abundant, and the country contained a large number of horses and cattle." ,73 But Halse made no effort to judge between the customary take, merely mentioning that the Moriori 'claimed as the original occupants' and the Maori 'by right of conquest'. The Native Department official clearly felt that he could give no hint of possible outcomes, and merely reiterated that 'the question was one for the Judges of the Court to decide'. 74 Halse's mission was unsuccessful in stopping the return of a large group of Ngati Mutunga and Ngati Tama to Taranaki at the end of 1867. The government was alarmed by this development, especially when they discovered that their own suggestion of a ( survey may have facilitated the migration. The Native Department suspected that settlers had taken advantage of the preliminary survey to make pre-hearing deals' ~ith the pre~umptive Maori owners, who then felt free to return to the main1and. 7s A senior official decided to take advantage of his inspection tour of the Chathams penal colony to put a stop to such arrangements or any further migrations. 76 Rolleston had as little success as Halse, however, and most of the Ngati Mutunga and Ngati Tama inhabitants

72 See above, p. 18.

73 AJHR 1867 A-4, p. 6. (doc 1. 14)

74 ibid., pp. 3-4.

7S W. Rolleston to S.P. Smith, 24 December 1867, cited in Gilling, p. 49. (doc 1.17)

76 ibid.

23 had left the islands by the end of 1868. This was the situation on the eve of the Native Land Court sittings in 1870.

II

The mass departure of Ngati Mutunga and Ngati Tama for Taranaki in 1867-1868 was accompanied by the escape of the Hauhau prisoners under Te Kooti in 1868. The Maori population of the Chathams was reduced to a handful, and the Moriori were once again the majority of the 'native' population, for the first time since 1836. This did not mean that the Taranaki migrants had forgotten their Chathams claims, and they asked the government to hold the Chathams Land Court hearings on their own home ground at Taranaki. The Moriori held a council to discuss this question, and asked the government to keep any Land Court hearings on the islands themsel ves. 77 The usual practice of the court was to hold sittings as close as possible to the blocks under consideration, and the government did not depart from this rule for the Chathams in 1870. The Colonial Secretary continued to receive pertinent information about Chathams land claims from interested parties and the Resident Magistrate, right up to the Court hearings of June 1870. Captain Thomas warned the government that a potentially violent situation had a+isen since the departure of '\ most Maori for the mainland: It will no doubt be in the recollection of the Govt from my previous reports that jealousy and irritation have always for a long time past existed between the Aborigines and Maories regarding the ownership of the land throughout the Islands. This jealousy and irritation assumed a very serious aspect at the time above referred to [April 1870], through the Morioris having of late since the departure of the main bulk of the Maori population for Taranaki signified a more distinct assumption of their right to the land. This progressive assumption on the part of the Morioris was clearly perceived by the Maories, who became much excited and I was in dread at the

77 Moriori Runanga to Government, Waitangi, 11 August 1868, Davis Papers; copy supplied by claimants.

24 time alluded to that bloodshed would ensue. I therefore without delay bound over by recognisance three of each of the principal Maories and Morioris to keep the peace for twelve r- months, since which no further likelihood of \ disturbance between the parties has evinced itself. The opportune arrival of His Honor Judge Rogan and the Land Court on the 13th instant will I have no doubt prove a panacea for the evils which have been likely to accrue from the ill feeling so long existing between the Aborigines and the Maories regarding the title to the land here. 78 While Captain Thomas succeeded in keeping the. peace, the Native Land Court finally pronounced judgement on claims which had been before the government since the first Moriori petitions of the early 1860s. On 23 June Judge Rogan announced his decision for the Kekerione and Te Awapatiki Blocks, awarding the lion's share to certain Maori chiefs but setting aside small reserves for the Moriori counter-claimants. According to Gilling, the Moriori were probably 'stunned into a state of shocked disbelief and inertness' by the unexpected (to them) results. 79 They made no attempt to lodge a counter-claim for the Wharekauri Block on the following day, and their leading spokesperson, Hirawanu. Tapu, ( abandoned his earlier arguments and pleaded with the court and i , Maori 'owners' for a Moriori reserve in the Rangiauria Block

(Pitt Island) .80 '> "" The 1865 Native Land Act permitted an appeal from court decisions to the Governor in Council within six months of the original judgement. As far as anyone knows, the Moriori did not appeal to the Crown within this statutory period. Bryan Gilling asks: 'Why were there no appeals for rehearings later, within the permitted time, as opposed to belated protests? ,81 It is

78 Capt. Thomas to Colonial Secretary, Chatham Islands, 23 June 1870, RM's Record Book, JC-CI/1, National Archives. (doc 1.16 )

~ Gilling, p. 88.

00 ibid., pp. 86-88.

81 ibid., p. 96.

25 possible that Moriori were too stunned and immobilised by the scale of their defeat to act at once. They may not have even known that an appeal was possible, especially since they had not understood the Native Land Act when Halse read it out to them in 1867. 82 Nor could they rely on the judge to inform them of their rights; judges quite often failed to point out features of the Act which they disliked, such as section 17 of the 1867 Native Land Amendment Act. 83 It is also possible that Moriori were more intent on holding onto the little that they had received, as the reserve crisis of the next couple of years might suggest. It was not until this crisis was resolved that Moriori petitioned the Crown for redress in the matter of the wider land titles. Chief Judge Fenton informed the Native Minister that the Chathams land titles had been settled to the satisfaction of all: 'The Taranaki people told me they were well pleased, and Rogan says so were the Moriori' .84 As far as the government was aware, Hirawanu Tapu and his people were happy with their tiny share of the island, however unlikely that must have seemed in the light of Thomas' reports and the earlier petitions. It is also interesting to note that Grey was no longer Governor by this time, and that Moriori did not approach the government formally until his return to power as Prime Minister in late 1877. There were hints, however, of Moriori dissatisfaction and of continued tensions over land in the reports ~f the Resident Magistrates. '\ Unfortunately, Captain Thomas was absent from the Chathams from August 1870 to March 1871, and was replaced soon after by R.J. Lanauze, an excitable man who completely failed to grasp what was happening on the islands. Moriori took advantage of their numbers on the ground in 1871-72 to shift the battle from the courtroom to the land itself. They were determined to secure their reserves at any

~ See above, p. 22.

83 G. Phillipson, 'The Native Land Court and Direct Private Purchase', Section C of Ward, Phillipson, Harman & Walter, 'Historical Report on the Ngati Kahungunu Rohe', CCJWP, 1993, pp. 83-85.

M cited in Gilling, p. 94.

26 cost, and the trickle of Maori returning from Taranaki became alarmed that Moriori were resiting their reserves to their own advantage on better land. 85 The situation became very tense and (~ rumours of impending bloodshed abounded, but the Resident Magistrate was afraid that the real threat was to the Europeans who had leased land from Maori. Al though unable to prove anything, Lanauze believed that Taranaki chiefs had written to their relatives urging them to rise and kill the" settlers, supposedly on the orders of Te Whiti.u Moriori encouraged this belief and added to the rumours, leading Lanauze to appeal to the central government for a steamer and constables to disarm the

Maori and quell the expected uprising. 87 When the Resident Magistrate realised that the government as usual would not provide its Chathams agent with any physical sanctions, he sailed off to New Zealand to lay his case before the government in person. The result was the despatch of a new magistrate, Samuel Deighton, who reported to McLean that the Maori 'seem a harmless set of individuals, and it appears a most wonderful thing to me how the Settlers here could have ever got into the state of panic they were in, in La Nauze's time, who by the way seems to have bungled the whole affair in a most mysterious way'.~ ( Deighton soon discovered that the real problem was Maori anger at the way in which Moriori had staked out their claims to the Native Land Court reserves. He h~d a low opinion of Moriori, whom he believed to be a 'very inferi6r race to the Maoris' I and thought them lazy, deceitful, dirty, untruthful, but at least polite, hospitable, and essentially 'harmless'.~ The government

85 S. Deighton to Col. St. John, Chatham Island, 28 April 1873, RM's Record Book, National Archives. (doc 2.1)

86 R.J. Lanauze to R. Parris, Waitangi, 25 September 1872, RM's Record Book, N.A.

87 Lanauze to Dr. Pollen, 25 September 1872, RM's Record Book, N.A. For the Moriori role in the rumours, see T. W. Ritchie's diary, September 1872, cited in King, p. 134.

~ Deighton to McLean, Chatham Island, 28 April 1873, McLean Papers, MS Copy Micro 535/49, W:Tu.

89 ibid., & Deighton to McLean, Waitangi, 19 October 1873. C, 27 had instructed him to hold a meeting and find out about Maori grievances, and he reported these to Colonel St. John in April 1873. Their complaints were 'vague and somewhat contradictory', but all concerned the claim that Moriori had broken the Land Court rulings and taken the 'best land'. 90 Deighton did not believe them and suggested that this was just an attempt at 'the old scheme of repudiation in a small way, certainly they have not a leg to stand upon, even on their own showing,.91 Although Deighton does not seem to have interfered further in the reserves affair, tension continued as more Maori returned over the next couple of years. By 1875 the Maori outnumbered Moriori for the second time, and Deighton reported that the Taranaki chief Apitea objected to Tapu as a tidewaiter because of tensions about the Moriori reserves and other issues. 92 For their part, the Moriori became increasingly urgent to obtain Crown Grants for their reserves and were 'continually asking for them' .93 Five years after the court decision, therefore, the reserves were still in dispute and Crown Grants had still not been issued. Nor were Maori themselves entirely happy with the court decisions and rearranged them on the ground, with the Otonga Block, for example, being 'portioned off to different grantees by mutual consent'. 94 Nothing seemed settled or irreversible by 1875, therefore, and Moriori were still anxious that, they might 16se the little that they had gained in 1870. As far as Deighton's general reports were concerned, however, both peoples were contented and relatively industrious. There was no hint that Moriori planned

90 Deighton to Colonel St. John, 28 April 1873, RM's Record Book, N.A. (doc 2.1)

91 Deighton to McLean, 28 April 1873, McLean Papers, Micro MS Copy 535/49, W:Tu.

92 Deighton to Halse, Waitangi, 29 March -1875, RM's Record Book, N.A.

93 Deighton to T.E. Young, Waitangi, 17 April 1875, RM's Record Book, N.A.

94 Deighton to Under Secretary of the Native Department, Waitangi, 24 February 1875, RM's Record Book, N.A.

28 to challenge the court awards, and the magistrate claimed that the 'few surviving Morioris are very well off having good reserves of land in various parts of the Island'. 95 The only (~ jarring notes in his felicitous reports concerned the state of Maori and Moriori health, and the undeniable, and rapid decline ) of both the Moriori population and their cultural/linguistic heritage. Their language had almost disappeared, their traditions were going the same way, and he acknowledged some "government responsibility to halt this process if possible. Part of the terms of his appointment had included an injunction to produce a Moriori grammar and vocabulary, and he was trying to record at least some Moriori traditions. 96 Deighton's efforts at this were half-hearted at best, and he was also at a loss to explain the rapid decline in population. 97 The Resident Magistrate recommended that the government should provide a doctor and a hospital for both Maori and Moriori, but this suggestion was ignored. 98 The local doctor appealed for more government assistance in dealing with people whose language he could not speak, but hastened to assure the Colonial Secretary that they could easily afford his services.w In the meantime, Deighton continued to report a prevalence of

95 ibid.

'\ % ibid. See also Deighton to Under Secretary, 20 December 1876, & passim. King notes that Deighton did not produce the vocabulary until 1887 and never wrote the grammar, and suggests that he was 'widely regarded as being handicapped by an alcohol problem and the promise of the grammar and vocabulary is said to have prevented him from being dismissed from his post earlier'.(King, p. 138) This suggests that the government put a fairly high priority on trying to save the Moriori language from extinction, but that their chosen agent was not very effective in the job.

97 Deighton to McLean, Waitangi, 19 October 1873, McLean Papers, W:Tu: 'The small remnant is gradually dying out, why I cannot understand. ·

~ Deighton to Colonial Secretary, Waitangi, 13 June 1876, RM's Record Book, N.A.

W S. J. Cooper to Colonial Secretary, 10 January 1876, R . M. 's Record Book, N. A . lo< 29 sickness and a high mortality rate. He also unwittingly implicated past government inaction in the Moriori decline: 'They are a very inferior race in every respect to the Maoris - the fact of their having been kept in subjection for so many years may have possibly~made them more so than they would otherwise have been'. 100 The reserve issue seems to have settled down by the late 1870s with the issue of Crown Grants, and Moriori were ready to challenge the main titles awarded by the Native Land Court back in 1870. An unsigned letter, which has survived in the Davis Papers, suggests that Moriori had appealed to the government 'by 1878 for a rehearing of the Chat hams and Pitt Island cases. 101 The Native Department rejected their appeal, which led to a further plea in October 1878. The unnamed writers expressed satisfaction at their Crown Grants but asked for a rehearing for the rest of the land, on the grounds that 'authority' over it should not have been 'gained by the blade of the weapon'. 102 Around the same time two Moriori living in New Zealand, named Apiata and Te Karaka, met Prime Minister Grey and Native Minister Sheehan, and discussed the possibility of special rehearings for the Chathams. According to Apiata and Te Karaka, 'they were given to understand that any money that had been paid to Maoris by Europeans for rent or purchase of land at the Chathams was to use their own words "tarewa noaiho" [st~ll not final f and that upon application being made to parliameni a rehearing of the Case would be instituted'. 103 Apiata and Te Karaka returned to the Chathams and attended a Moriori council, to which they invited their Maori neighbours,

100 Deighton to Under Secretary, Waitangi, 17 July 1875, RM's Record Book, N.A.

101 Te Karaka to Sheehan & Clarke, Rapaki, 10 October 1878, in response to a letter from the Native Minister. This letter is from a private collection called the Davis Papers; copy supplied by claimants. (doc 2.2)

102 ibid.

103 Deighton to Native Minister, Waitangi, 18 April 1879, RM's Record Book, N.A. (doc 2.3)

30 but the Maori refused to discuss land issues at a Moriori kainga, and suggested Deighton's office as an alternative venue. Moriori found this unacceptable and went ahead w~th their meeting, at which they drew up a petition to J. Sheehan, Minister of Native Affairs. 104 The petition requested a review of the 'Wharekauri ruling', by which they meant the whole island 'through to the little islands beyond Rangiauria': 'Do not dwell on the first judgement. The second hearing will expose it •.. ' The petition was signed by Te Karaka Kahukura, Solomon Rehe, Teretiu Rehe, Teira Rangipewa, and Heta Namu. 105 After drawing up the petition, the Moriori met with Maori and Deighton and informed them-of the conversation with Grey and Sheehan, and that 'they intended to have the land back again and had written to Government demanding a rehearing'. 106 The Resident Magistrate informed Sheehan that Moriori were 'very insolent on the occasion' and he had trouble keeping order. His sympathy was clearly with the Maori, who objected to Apiata's waiata which apparently identified the Maori as Kingites and the Moriori as loyal supporters of the Queen. Deighton felt that the whole thing was absurd, but he forwarded a Maori appeal to Sheehan with his own covering letter, requesting a rapid reply 'by next mail if ( pos sible' . 107 The Native Department replied to Deighton on 12 August 1879, regarding the fact that 'the Mori?ris have been giving some trouble in connection with their old\grievances respecting the land question'. The department was clearly familiar with the longstanding Moriori aspirations, but Under Secretary Lewis denied that the Prime Minister or Native Minister had made the promises reported by Apiata and Te Karaka. He also made it clear

104 ibid.

105 Te Karaka & others to Sheehan, Manukau, 15 February 1879, Burt Papers, W:Tu; copy & translation supplied by claimants. (doc 2.4)

106 Deighton to Native Minister, Waitangi, 18 April 1879, RM's Record Book, N.A. (doc 2.3)

107 ibid.

31 that the government was not prepared to offer any redress to Moriori. Lewis claimed that 'there is no power to grant a rehearing of the claims - the time prescribed by law having passed by'. More to the point, he added that 'the Government does not intend to ask the Assembly to pass an Act for such a purpose' .108 Sheehan wrote to the Moriori claimants informing them that once Crown Grants had been issued, then 'no further proceedings could be taken in the matter'. Deighton gave them the same answer and reinforced the central government's position. 100 The Moriori did not give up and Hirawanu Tapu sent another petition to Secretary Rolleston in June 1881. He also sent Te Karaka to meet Rolleston and plead the Moriori case in person, and offered to go and appear before Parliament himself if that would obtain the Assembly's attention, so long as 'you approve of my so doing' . 110 It would seem that a personal appearance was the last thing that the Native Department wanted, since they sent Tapu' s letter back to Deighton for him to handle. 111 The published Parliamentary papers suggest that the Moriori petitions of 1878, 1879, and 1881 were not tabled in the House or referred to the Native Affairs Committee for investigation. 112 The government usually referred petitions against Native Land Court decisions to that Select Committee, but the Moriori ones were dealt with by the Native Department on its own authority. Deighton responded to Tapu' s let~er of 1881 ;:'ith the same \ assurances that court decisions could not be revisited after the

108 Lewis to Deighton, 12 August 1879, Burt Papers, W:Tu; copy supplied by claimants. (doc 2.5)

100 Deighton to Under Secretary, Waitangi, 14 November 1881, RM's Record Book, N.A. (doc 2.6)

110 Hirawanu Tapu to Rolleston, Manukau, 11 June 1881; copy supplied by claimants. (doc 2.7)

111 Deighton to Under Secretary, Waitangi, 14 November 1881, RM's Record Book, N.A. (doc 2.6)

112 N.Z. Native Affairs Committee, Reports, 1872-90 [hereafter NAC]. See reports for 1878-1882.

32 issue of Crown Grants. 113 In 1876 the Native Affairs Committee noted that most of the Maori petitions to Parliament were 'virtually in the nature of appeals from the decision of the Native Lands Court'. 114 In this and the following year, the Committee stressed that 'it is not desirable that they should act in the capacity of a Court of Appeal from the Native Land Court, inasmuch as it is manifestly impossible that they can take sufficient evidence or devote sufficient time to a single case to enable them to arrive at a satisfactory conclusion'. 115 They feared that there would be no 'fair and just redress of grievances' unless the" government established a 'competent Court of appeal' for the Native Land Court. 116 The government ignored these recommendations and continued to refer Maori petitions to the Native Affairs Committee. The members tried to examine witnesses in the very limi ted time available, especially the Chief Judge, and sometimes recommended that a case should be reheard. Parliament could pass special legislation to authorise rehearings, such as the clause in the 1878 Native Land Amendment Act, which ordered a rehearing of Hori More's case in accordance with the Committee's recommendation. 117 ( The government hesitated to pass such legislation in the late 1870s and early 1880s, and failed to act on most Committee recommendations to; this effect. Altll,ough such legi"slation became '\ commonplace in later years, the Moriori had already been petitioning the government about their land rights for the past twenty years, and may have felt that there was little point in

113 Deighton to Under Secretary, Waitangi, 14 November 1881, RM's Record Book, N.A. (doc 2.6)

114 General Report, 23 August 1876, in NAC, 1876, I-4, p. 9. (doc 2.8)

115 Petition of Herewine Te Rangai & others, NAC 1877, I-3, p. 37, (doc 2.9). See also below, pp.39-41.

116 General Report, 23 August 1876, in NAC, 1876, I-4, p. 9. (doc 2.8)

117 See below, pp. 39-41.

33 continuing after the mid-1880s. The governmen~ had chosen not to submit the Moriori petitions to the Native Affairs Committee for inquiry, or to pass legislation enabling 'special rehearings on the Chathams. Faced with this stalemate, Moriori turned back to the ordinary court process and decided to make what King called a 'test claim' for the outlying islands. 118 This provided an opportunity for the court to reassess Moriori rights, and might even provide a stronger basis for further appeals against the 1870 decisions. In the event, however, the government did not send an experienced or fully qualified Land Court judge to hear the 1885 claim. As early as 1875 the government had decided to make the Chathams Resident Magistrate a judge for Native Land Court cases. Deighton'S family expected that this would involve circuit work in New Zealand, but the Native Department was quick to disabuse them of the notion- that his writ would run outside the islands. The appointment had been made for administrative convenience, and was indicative of the government's attitude to Chathams issues: His appointment as Judge of the N.L. Court at the Chathams was made in order that cases of succession might be there settled instead of a Judge leaving New Zealand for the purpose. The appointment had no reference whatever with the duties of a Judge of the Court in matters of enquiry in this Island [New Zealand].•. 119 Both King and Gilling have crit~cised Deighton'S ability, qualifications, and prejudices, wi th regard to hearing Maori/Moriori land cases.1~ His appointment did not take effect until 1881, when he heard a series of the expected succession and parti tion cases. The Chief Judge took his time in reviewing Deighton's initial efforts, and in 1885 he sent back several subdivision orders for adjustment. Deighton clearly had no firm l guidelines on court procedure and powers, so that the Chief Judge had to take 'all sorts of liberties with your Orders', and sent

118 King, p. 140.

119 Assistant Secretary to R. S. Deighton, Napier, 1 May 1875, McLean Papers, MS Copy Micro 535/49, W:Tu.

120 King, pp. 140-141; Gilling, pp. 100-103.

34 material for his guidance on the most basic aspects of court procedure and title law. 121 This information was sent in July 1885, five months after the judge had - held his hearing on Hirawanu Tapu's claim for Motuhara Island. Given his lack of experience and knowledge, Deighton found (incorrectly) that the ownership of the outlying islands had been decided by the 1870 hearings. 122 He was neither prepared for - nor capable of - rethinking Judge Rogan's position on Moriori rights. Thus, the Moriori test case was heard by an unsuitable judge who was only expected to handle succession orders. This was part of a general government attitude that the Chathams were not important and could be safely ignored. J.V. Bridson explained to Deighton why it had take so long to respond to his succession and partition orders: It is very unfortunate in many respects that you are so far beyond the bounds of civilization. When one finds that there is no immediate opportunity of sending a reply the reply is postponed and frequently forgotten altogether. In this case you have not been forgotten but we have been so horribly run with work as to have no time for anything but parliamentary demands. 123

In this atmosphere of official neglect, the Moriori could not ( hope for a genuine or impartial re-evaluation of their rights and status. '.'

\

121 J. V. Bridson to Deighton, Wellington, 15 July 1885, Chatham Islands Official Papers, MS Papers 619/1, W:Tu. (doc 2.10)

1~ Gilling, p. 102.

123 J. V . Bridson to Deighton, Wellington, 15 July 1885, Chatham Islands Official Papers, MS Papers 619/1, W:Tu. ~; 35 PART II

EXAMPLES OF CROWN INTERVENTION IN THE GENERAL PROCESS AND INDIVIDUAL DECISIONS OF THE MAORI LAND COURT

The following section of this report is not a connected narrative of government intervention in the affairs of the Maori Land Court; it is a series of examples of such intervention drawn from different periods of the history of the court. The relationship between the government and the court has often been a matter of debate and controversy. In 1867, for example, a Native Land Court judge awarded costs against the government and made a statement in court critical of the Crown's actions within the context of a particular hearing. The government responded with a stern rebuke and refused to pay costs. The Native Minister suggested that the judge had exceeded his powers and had acted irresponsibly, and should pay the costs out of his own salary.124 This led to an interesting debate in the House about the nature of the court and its relationship with the government. More than most courts, perhaps, the Native Land Court of the time operated in an intensely political atmosphere, and was seen as an institution of 'so tentative a character' that it had no "natural" right to exist, and might be altered or swept away altogether at the whim of the Asse~bly. Both th~ court and its judges were accidental creations, ~'rising out of an initial intention to form a commission of inquiry, and they were set up to carry out the 'policy of the House and not of the judges of the Native Land Court' .125 This policy was essentially one of extinguishing native title to assist direct purchase of Maori land by European settlers. Judge Monro freely admitted, for example, that one function of his court was to facilitate the sale of Maori land

124 J.C. Richmond to Judge Monro, 24 August 1867, read to the House on 18 September 1867, NZPD 1867, vol. I, pp. 953-954. See Appendix One.

125 J.C. Richmond, 18 September 1867, NZPD 1867, vol. I, p. 956. See Appendix One.

36 to Europeans, and boasted that the court was performing this task at a faster rate than the previous policy of pre-emption. 126 This meant that judges interpreted protective provisions in the law according to their understanding of the underlying policy of the House. Restrictions on alienation, for example, were not granted if someone like Henare Tomoana wanted I to put large tracts of land for ever out of the reach of Europeans, which are not necessary for their wants ,.127 As a result of t'he court I s semi-political nature, Parliament frequently altered the legislation governing the constitution of the court, and the laws which the court was supposed to administer, and frequently gave the government statutory powers to intervene in the process of court hearings. The parliamentary debate of September 1867 serves as a useful introduction to some of the issues surrounding the status and functions of the court during the early period of its existence. 128

I THE ROLE OF OTHER COURTS

1. Opinion of Chief Judge, 7 April 1868: this legal opinion stated that the Chief Judge would not carry out section 17 of the c

Native Land Amendment Act, 1867. He added: I If this view is wrong, this Court may readily be compelled by mandamus to give

M the clause in question any other ef~ect which tthe •• Supreme Court may think would more fitly interp~~t the intentions of the

Legislature I .129 The government did not seek a writ of mandamus to compel the Native Land Court to issue titles under section 17 of the Act. 2. Native Land Act, 1873: section 103 provided that on the

126 Judge Monro to Fenton, 12 May 1871, AJHR 1871 A-2A, pp. 14 -15. (doc 3. 1 )

127 Haultain Report, AJHR 1871 A-2A, p. 8. See also Reports of the Hawkes Bay Land Alienation Commission, 1873.

128 See Appendix One.

129 Opinion of Chief Judge on 17th Clause of Act, 1867, and Letters, 7 April 1868, AJHR 1871, A-2A, p. 41. (doc 3.2) L~ 37 application of a party before the court, or a motion of the court itself, the judge might refer 'any question of law arising in any matter judicially before it' to the Supreme Court for a final decision. This was a reciprocal relationship in which the Supreme Court could also refer any pOint of Maori custom to the Native Land Court for settlement. 130 3. The Rees-Carroll Commission, 1891: this Commission suggested that Maori ought to have tested titles granted by the Native Land Court (and since on-sold to settlers) in the Supreme Court, especially titles granted under the ten-owner rule: It is a fact worthy of remark that this proceeding [the ten-owner rule] of the Native Land Court has never been made a distinct subject of litigation. It is difficult to believe that the Colonial Courts or the Privy Council would have permitted the Treaty of Waitangi and "The Native Land Act, 1865," to be so summarily overruled. In view of the possible disputes upon this point, we would respectfully suggest that the question should be settled by legislation. 131

4. Native Land Court Act, 1894: section 79 established a Native Appellate Court, to consist of the Chief Judge and any other judges of the Native Land Court whom the government chose to appoint. This new court would act as a court of appeal from the Native Land Court so long as appeals were lodged within thirty days of a decision, or within three months by special , •. ' permission of the Chief Judge. 'S~ction 92 authorised the Appellate Court to refer points of law to the Supreme Court for a final decision, in the same manner as the Native Land Court. 132 5. Land Titles Protection Act, 1902: according to the preamble of this Act, Maori had recently begun to lodge actions in the Supreme Court against titles issued by the Native Land Court, some of which had been granted over thirty years before, and had since been sold to settlers. All of these actions had

1~ NZ statutes, 1873.

131 Rees-Carroll Report, 23 May 1891, AJHR 1891, G-l, p. vii. (doc 3.3)

1~ NZ statutes, 1894.

38 -: .':.,

been dismissed by the Supreme Court with heavy costs. In order to protect European buyers from these I Frivolous Attacks' on their titles (a strategy recommended -by the Rees-Carroll Commission), Parliament enacted that no title to Maori land, or to land purchased from Maori and held under Crown Grant, might be tested in any court without the prior consent of the Governor in Council. The government was authorised to give such consent if the applicants could demonstrate a prima facie case, but only if remedial legislation was not preferable to litigation. This Act effectively deprived Maori of the right to test any land titles in the ordinary courts or the Privy Council. 133

II THE ROLE OF PARLIAMENT

1. SELECT COMMITTEES

The ordinary appeal process of the Native Land Court involved lodging an appeal with the Governor in Council, or later with the Chief Judge, within a certain period after the announcement of the court's decision. The extraordinary appeal process involved petitions to Parliament in the hope of remedial legislation, either altering titles or authorising a rehearing after the statutory time limit had elapsed. These petitions were usually referred to a Select C~mmittee of the House of Representatives called the Native Aff~irs Committee, or sometimes to the Petitions Committee or Native Affairs Committee of the Legislative Council. A. Petitions Committee of the Council: in 1871, for example, the Petitions Committee investigated the petition of Te Otene Matua and other Hawkes Bay Maori, which complained about the Crown purchase of the Seventy Mile Bush block and the manner in which the court decided the title of this block. The Committee examined witnesses but recommended no action to Parliament. 134 B. Native Affairs Committee of the House: lthis Committee was

133 ibid., 1902 & 1908. (doc 3.4)

134 AJLC 1871, Paper no. 24.

39 the usual body to which the House referred Maori petitions for investigation and recommendations of action. During the period of most direct concern to Moriori (the 1~70s and early 1880s), the Native Affairs Committee usually made one of three responses to petitions abou~ Native Land Court decisions: ( i) the Committee sometimes recommended legislation to authorise a rehearing ego the 1876 petition of Meiha Kepa. A major fault in the surveys had resulted in an injustice to the petitioner, and the Committee recommended the government to authorise a rehearing. 135 (ii) the Committee sometimes suggested that the government ought to carry out a more extensive inquiry into a case, before deciding whether action was necessary ego the 1881 petition of Wi Kepa te Rangipuawhe and five others. This case had already been heard twice by the Native Land Court, but evidence taken by the Committee suggested that there should be a 'careful investigation by the Government into all the circumstances to ascertain if there be a grievance'. 136 (iii) the Committee most often made no recommendations but simply referred the case back to the government 'for their consideration', eg. the 1877 petition of Hone Te Awa and others. 137 This action was sometimes accompanied by a comment that the Committee saw no need for further action, ego the 1881 petition of Kawana Hunia and 82 o~~ers: 'The Committee see no reason for disturbing the judgment'\ of the Court, but would commend the matter to the consideration of the Government'. 138 The government did not often act on the advice of the Native Affairs Committee if it recommended a rehearing during this early period, although they occasionally passed legislation to bring one about. The Native Land Amendment Act of 1878, for example, included a provision for a rehearing in the case of Hori More,

135 NZ Native Affairs Committee Reports, 1872-1890 [hereafter NAC ], 187 6, 1-4, p. 5. (doc 3. 5 )

136 ibid. , 1881, 1-2, p. 24. (doc 3.6)

137 ibid. , 1877, 1-3, p. 21. (doc 3.7)

138 ibid. , 1881, 1-2, p. 12. (doc 3.8)

40 in response to a. Committee recommendation of the previous year. 139 At the same time as Parliament proved reluctant to pass special legislation, the Native Affairs ~ommittee itself felt uncomfortable with its role as a body to investigate and review Native Land Court decisions. In its report on the petition of Herewine Te Rangai and others, the Committee wrote: this petition is virtually in the nature of an appeal from the decision of the Native Land Court. The Committee believe that it is not desirable that they should act in the capacity of a Court of Appeal from the Native Land Court, inasmuch as it is manifestly impossible that they can take sufficient evidence or devote sufficient time to a single case to enable them to arrive at a satisfactory conclusion. In the present instance the Committee do not feel justified in making any specific recommendation. 140 In 1876 the Committee issued a general report which recommended the creation of a 'competent Court of appeal' to enable petitions to be 'dealt with much more intelligently than they can now be dealt with, and [which] would be conducive to that fair and just redress which it is the desire of this Committee to see secured to the Maori race' .141 The government ignored these reservations and no court of appeal was established until 1894. Even after the creation of this Appellate Court, however, the Native Affairs Committee continued to investigate petitions against decisions of th~, Native Land *'Court, and to recommend legislation for special reh'earings. 142

2. COMMISSIONS OF INQUIRY

The government has appointed different types of commissions from time to time, to investigate the operation of the Native Land Acts, the practice of the Native Land Court, and sometimes

1N ibid., 1877, 1-3, p. 18, (doc 3.9); NZ statutes, 1878. (doc 3.10)

140 NAC, 1877,1-3, p. 37. (doc 2.9)

141 ibid., 1876,1-4, p. 9. (doc 2.8)

142 eg. AJHR 1900, 1-3.

41 the individual decisions of the court. The following are a series of examples of such commissions of inquiry I appointed under various authorities and with very different terms of reference. (i) The Haultain Inquiry: on 13 February 1871, the Minister of Native Affairs asked Colonel Haultain to carry out an inquiry into the operation of the Native Land Acts, alienation of Maori land, surveys, and the expenses of the court system, to provide 'data upon which some revision and improvement of the existing law could be proposed to the Legislature'. 143 This was not a formal Commission of Inquiry established by statute or Order in Council, but an informal investigation authorised by the Minister of Native Affairs. Colonel Haultain had no power to summon witnesses or compel the submission of documents, but he nevertheless carried out a thorough inquiry and prepared a report for the government, which was tabled in both Houses of Parliament. Haultain acted as though he did have the powers of a formal commission, and he examined oral and written evidence from selected witnesses, and many of the court's official documents. Both the judges and Maori chiefs co-operated with Haultain, who produced a report critical of the Native Land Acts and the court in certain respects .144 Although Parliament took no immediate action in response to the colonel's report, it was one of the factors >which led to the appointment of a formal Royal

Commission in the following year I' and probably ·influenced the , , Native Land Act of 1873. 145 '\ (ii) Hawkes Bay Native Lands Alienation Commission: on 25 October 1872 the New Zealand Parliament passed an Act constituting a Royal Commission to investigate the large number of complaints about the Native Land Acts, Native Land Court, and private purchase of Maori land, that had been received from the people of Hawkes Bay. 146 The Commission investigated a series of

143 D. McLean to Haultain, 13 February 1871, AJHR 1871 A-2A, P . 25. (doc 3. 11 )

144 Haultain Report and Appendix, AJHR 1871 A-2A.

145 Phillipson, pp. 90-91, & passim.

1~ NZ statutes, 1872.

42 individual cases and reported on the merits of each complaint, as well as making general recommendations for the alteration of both the land laws and the court. Ngati Kahungunu were disappointed that the Commission had no powers of redress, either to order payment of compensation or the return of land acquired through fraud. The Chief Commissioner informed them that 'nothing will result from the present Enquiry as affecting the past; the advantages to be derived from the labors of the commission being useful as a guide for legislation for the future'. 147 Although the Commission was unable to recommend legislative remedies for past grievances, it did advocate important reforms in the existing laws and the practice of the court, which were influential in Donald McLean's Native Land Act of 1873. 148 (iii) Royal Commission of 1904: under section 11 of the Maori Land Claims Adjustment and Laws Amendment Act, 1904, the Governor in Council was authorised to appoint one or more Royal Commissions to investigate complaints from 25 Maori petitions, which involved 'alleged grievances and miscarriages of justice' in the findings of the Native Land Court. 149 Unlike the Hawkes Bay Commission of 1873, this 1904 Commission was intended to recommend specific action to remedy past grievances, rather than c to concern itself with the wider operations and policy of the court. The Commission recommended the cancellation of several succession and partition o~ders an~ the rehearing of about ten cases, all of which received legisl~tive authorisation in the Maori Land Claims Adjustment and Laws Amendment Act of 1906. The same law included provision for another four rehearings on the advice of the Native Affairs Committee, and a rehearing recommended by a previous Royal Commission. 150 (iv) Simm Commission of 1928: this Royal Commission was established in response to numerous Maori petitions, in order to

147 H. Turton to McLean, Napier I 10 March 1873, McLean Papers, MS Copy Micro 535/94.

148 Phillipson, pp. 89 I 104-105, 110-114.

1W NZ statutes, 1904.

150 ibid., 1906 (doc 3.12) I & AJHR 1905, G-1. 43 investigate grievances ar~s~ng from the confiscation laws . The Simm Commission found that the Native Land Court was also

involved because of deals between Crown-and Maori I where the government had relinquished its claim to confiscated land and then allowed it to pass through the Native Land Court. The Simm Commission investigated the activities of this court without a specific mandate to do so, apart from its general authorisation to hear the petitions. The Commissioners concluded that the government had manipulated the various laws and the Native Land Court process in order to escape from its earlier agreements with , loyal' groups and to appease 'rebel' Maori. Their findings indicated the political nature of government decisions about where and when the Native Land Court was allowed to operate, and about which laws would govern the entitlement of Maori to their land. 151

3. SPECIAL LEGISLATION

Acting on the advice of various bodies and officials, such as Select Committees, Commissions of Inquiry, and the Chief Judge of the Native Land Court, Parliament passed many laws to authorise rehearings in the Native Land or Appellate Courts. (i) laws to authorise rehearings for a whole class or classes of Maori right-holders, eg~,the Native Equitable Owners Act, 1886, which enabled rehearing ~f all cases where land was granted to ten people as absolute owners (1865-73). This law protected the rights of European purchasers and lessees. It also authorised the Native Land Court to ascertain title to the Ngai Tahu reserves 'as it would have if such lands were still lands

151 AJHR 1928, G-7, pp. 26-27 (doc 3.13). See also Captain Mair to H.T. Clarke, 16 October 1877, AJLC 1877 Paper no. 19, p. 4: 'Shortly after I was appointed District Officer for the Bay of Plenty the jurisdiction of the Native Land Court was suspended in my district, on account of Government land-purchase negotiations. ' Given the government role at this and other levels of the Native Land Court process, it may be ahistorical to draw a strict line between the actions of the government and the actions of the court. 44 over which the Native title had not been extinguished' .152 In promoting the necessity for this remedial Act, Prime Minister Stout commented that the 'injustice done-to the Native people (~ under the Act of 1865 is one of the greatest disgraces to this colony' .153 (iii) laws which included clauses to authorise rehearings for particular cases. These laws were often passed annually, and changed their titles over the years ego the Native Land Claims Adjustment and Laws Amendment Acts, the Native Purposes Acts, and the Maori Purposes Acts. 154

III ORDERS IN COUNCIL

At various times the government has given itself statutorY roles in the business of the Native Land Court. These included the authority to interrupt and suspend court sittings where necessary to preserve the peace, the responsibility for controlling surveys of the land which passed through the Court, the appointment and control of District Officers and their preliminary inquiries, and the authority to remove restrictions ( on alienation imposed by the court. 155 Some of the government's powers were exercised through Orders in Council, ego (i) the 1865 Native Land Act made the process of appeal from decisions of the Native Land Court:, the responsibility of the '\ Governor in Council. All appeals had to be lodged with the government within six months of the original court decision. 156 This' period was reduced to three months by the Native Land Amendment Act of 1878. 157 Rehearings were authorised by an Order in Council, on the'advice of the Chief Judge of the Native Land

152 NZ statutes, 1886. (doc 3.14)

153 NZPD 1886, vol. 54, p. 303.

154 See NZ statutes.

155 Phillipson, pp. 73, 110-118.

156 NZ statutes, 1865.

157 ibid. I 1878. C~· 45 Court. The government was not obliged, however, to accept the Chief Judge's advice, and the final decision in the ordinary process of appeal rested with the Ministry.- In 1878, for example, the Native Affairs Committee commented that the Chief Judge had advised against granting a rehearing for a particular block, but that two years had passed and the government had still not decided whether or not to grant the appeal, with the result that no title had been issued. In this case the government was both an interested party in the court case, and the ultimate authority for appeal. 158 The government's control of the ordinary appeal process was removed in 1880, when the Native Land Court Act gave the Chief Judge the power to order a rehearing in cases where an appeal was lodged within three months of the original decision. 159 (ii) the Native Land Court Act, 1894, entrusted various duties to the Governor in Council, eg: 1. Section 14 - an Order in Council could empower the Native Land Court to determine beneficiaries under Native Trusts, where the Court had appointed nominal owners as virtual trustees. This Order in Council was also necessary to permit the court to include such beneficiaries in the title.1~ 2. Section 15 - an Order in Council could confer jurisdiction on the Court, 'as effectually as if the same were conferred by this Act', to hear any matter or question affecting Maori rights in real or personal property. This s'~~tion of the Act gave the government discretion to extend the court's jurisdiction without an automatic parliamentary review, as these Orders in Council did not have to be tabled in the House. 161 3. Section 101 - the chief Judge could make new rules for the court or change existing ones, but only with the approval of the Governor in Council. These Orders in Council had to be tabled in

158 NAC, 1878, 1-3A, p. 1. (doc 3.15)

1~ NZ statutes, 1880.

1~ ibid., 1894. (doc 3.16) 161 ibid.

46 Parliament within .. a certain period of time after their promulgation. 162 (iii) Land Titles Protection Act, 1902 - authorised the r government to permit rehearings by Order in Council in cases that \ were more than ten years old, so long as the applicants could demonstrate a prima facie case to the satisfaction of the government, and that remedial legislation did not seem a more appropriate response. 163 In 1904 Atiraira Mohi and Ngawaina Hanikamu applied for an Order in Council under this Act, to instruct the Native Land Court to rehear the Wakapuaka Block under the equitable owners clause of the 1894 Native Land Court Act. JI'he government received submissions and sworn testimony from counsel, and decided not to grant the Order in Council. 164 (iv) Maori Affairs Act, 1953 - Orders in Council were necessary to confer jurisdiction on the court to hear trust cases, as provided· for in the equitable owners provisions of the Native Land Court Act, 1894. 165 In 1987 the government issued an Order in Council under the 1953 Act to permit the Maori Land Court to rehear the Hikurangi Block.1~

IV THE CHIEF JUDGE (

The Maori land legislation of the last 129 years has assigned varying powers and respons'~bilities to the Chief Judge. It would be interesting to investigat~ the detailed interaction between the Chief Judge and the government in the exercise of some of these powers, but the present report will be confined to the following brief examples. (i) Native Land Court Act, 1880: this Act finally ended the government's direct control of the ordinary appeal process. From

162 ibid.

163 ibid., 1902. (doc 3.4)

164 AJHR 19 3 6 G-6 B , pp. 42 - 5 2. (doc 3. 1 7 )

165 NZ Statutes, 1953. (doc 3.18)

1~ NZ Gazette, 1987. (doc 3.19)

47 1865 to 1880, the Governor in Council consulted the Chief Judge but retained the final authority to reject or grant appeals. In 1880 Parliament replaced the Governor in Council with the Chief Judge as the final authority in the ordinary process of appeals. 167 (ii) Native Land Court Act, 1894: people could apply in writing to the Chief Judge to correct any mistake or omission in the court's actions, or any error in deciding a point of law. This Act empowered the Chief Judge to investigate the question and alter any title or grant, so long as the land had not been sold to another party. The clauses in question (sections 38-39) seem capable of a very broad interpretation. This Act also empowered the Chief Judge to change the rules governing the practice and procedures of the court, but the exercise of this power was subject to the permission of the government and the review of Parliament.1~ (iii) Maori Affairs Act, 1953: in section 452, Parliament conferred very broad powers of review on the Chief Judge. It gave him jurisdiction to consider any written complaint about a court decision, whether the grievance was about a point of law, a technical mistake, or even about the facts presented to the court. The Chief Judge had absolute discretion to reject such appeals, to refer them to the Maori Land Court or Appellate Court, or to hear them privately wi~hout formal court sessions. As a result of any of these inquirie~, he could cancel or amend titles or grants, with the possibility of an appeal from his decision to the Appellate Court. Claimants could not appeal from his decision if it consisted of a refusal to investigate their claim. 169

V THE WAKAPUAKA BLOCK - A DETAILED EXAMPLE, 1883-19361ro

1Q NZ statutes, 1880.

1~ ibid., 1894. (doc 3.16)

1~ ibid., 1953. (doc 3.18)

170 Unless otherwise referenced, the following information is drawn from AJHR 1936 G-6B. (doc 3.17) 48 1883 - the Native Land Court investigated title and awarded it to Huria Matenga, daughter of Wi Katene Te Puoho. Huria's relatives (descendants of Wi Katene's mother, Kauhoe, and his half-brother, Paremata Te Wahapiro), the wider community of Ngati Tama, and the iwi who made a tuku of the land (Ngati Koata) all had a potential claim to the block. Paremata's descendants later claimed that they allowed Huria to prosecute the claim, on the understanding that she would submit their names alongside her own for the certificate of title. The court awarded title for the 17,000 acre block to Huria Matenga alone. 1895 - Huria Matenga leased the whole block to her husband Hemi, in return for £100 p.a.

_~895-96 - once established as sole lessee, Hemi Matenga ejected Huria' s relatives from the block by destroying their stock, houses etc. 1896 - Wi Katene Paremata and others petitioned Parliament for a Native Land Court rehearing. The Native Affairs Committee investigated title to the block, examined witnesses, and at first agreed to recommend a rehearing, but changed its mind after receiving evidence from Judge Alexander Mackay. A later inquiry (1936) implied that Mackay had improper motives for preventing ( a rehearing. 1898 - the claimants again petitioned Parliament, and the Native Affairs Committee of the Legislative Council investigated , . the case, examined witnesses, but agaih decided that no rehearing was necessary on the strength of A. Mackay's evidence. 1899 - Atiraira Paremata petitioned Parliament but this petition was adjourned to the next session and was never investigated. 1901 - H. Tomoana moved in the Legislative Council that the government should investigate the claim to see if there were 'other natives having an equitable claim'. The Legislative Council passed the resolution but the government took no action. 1903 the claimants presented another petition to Parliament, and the Native Affairs Committee asked the Minister of Justice to instruct a Nelson magistrate to examine Huria Matenga, with other parties having the right to cross-examine.

49 l I

The magistrate would report the results to the Committee. The Minister replied that a magistrate could not compel Huria to attend or take her evidence on oath. A Nelson magistrate did examine Huria but nothing came of it because her evidence was not sworn. The Native Affairs Committee merely endorsed the 1898 Report. 1904 - the claimants applied for an Order in Council under the Land Titles Protection Act, 1902, to instruct the Native Land Court to rehear the Wakapuaka case under the equitable owners clause of the 1894 Native Land Court Act. 1905 - Huria Matenga's solicitors got sworn affidavits from James and Alexander Mackay, and sent these to the Minister of Native Affairs. The Government decided not to issue an Order in Council. 1909-1934 - The claimants petitioned Parliament in 1909, 1910, 1912, 1928, 1929, 1933, and 1934. The Native Affairs Commi ttee answered all of these petitions by simply reissuing the earlier reports of 1896 and 1898. 1935 after receiving another petition in 1935, the Minister of Native Affairs referred the petitions of 1933-35 to the Native Land Court and ordered it to investigate the matter by a clause of the Native Purposes Act of 1934. Judge Harvey held a full court inquiry and ruled that the court had not had full possession of the facts in 1883 an~ that its decision was both wrong and unjust. He recommended that'\the case be reinvestigated 'and if necessary an adjustment of the equities upon the basis of such a finding' should take place. 1936 - the Chief Judge endorsed Harvey's finding that a prima facie case existed for rehearing and recommended that legislation be passed to empower the Native Land Court to rehear the case. Section 9 of the 1936 Native Purposes Act instructed the Native Appellate Court to reinvestigate the Wakapuaka title with reference to the petitions of 1933-35. The Act empowered the court to admit other people to the title on the basis of their customary rights, to award compensation from the estate of Hemi Matenga, and to pay the legal costs of new grantees from the Matenga estate. The court's findings would not affect land

50 'alienated for value' . 171 1937 - the Native Appellate Court heard the case and altered the title, reducing the share of Huria Matenga's heir to 25%, and awarding 75% of the title to the descendants of Kauhoe's other children. The claims of the wider iwi of Ngati Tama and of Ngati Koata were dismissed. 172 The whole process had taken 54 years from the issuing of the first certificate of title, and 41 years from the first petition to Parliament for a rehearing.

(

'\

171 NZ statutes, 1936.

172 H. & M.J. Mitchell, evidence presented to the Waitangi Tribunal on behalf of claimants, 1993, Wai 102 A-16(b), Chapter 8, p. 153. L, 51 BIBLIOGRAPHY

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Travers, H.H. '"On the Chatham Islands', TPNZI, 1868. ( SECONDARY

PUBLISHED

Burns, P. Fatal Success: a History of the New Zealand Company, Wellington, 1989.

King, M. Moriori: a People Rediscovered, Auckland, 1989.

Natusch, S. Hell and High Water: a German Occupation of the Chatham Islands, 1843-1910, Christchurch, 1977.

Orange, C. The Treaty of Waitangi, Wellington, 1987.

Richards, R. Whaling and Sealing at the Chatham Islands, Canberra, 1982.

Waitangi Tribunal, The Te Roroa Report, Wai 38, Wellington, 1992.

Ward, A. A Show of Justice: racial 'amalgamation' in nineteenth­ century New Zealand, Auckland, 1973.

Wards, I. The Shadow of the Land, Wellington, 1968. ( UNPUBLISHED

Gilling, B. 'The Native Land Court in the Chatham Islands: a report to Te Iwi Moriori Trust Board', September 1993, Wai 64 A- la. ~ Mikaere, B. & Ford, J. 'A prelimi~aty Report to the Waitangi Tribunal on the claims relating to the Chatham Islands' October 1993, Wai 64 A-8. Mitchell, H. & M.J. Evidence presented to the Waitangi Tribunal on behalf of claimants, 1993, Wai 102 A-16(b), Chapter 8.

Phillipson, G.A. 'The Native Land Court and Direct Private Purchase', Section C of Ward, Phillipson, Harman, & Walter, 'Historical Report on the Ngati Kahungunu Rohe', CCJWP, 1993.

(

53 __ ," " " __ ..-J ~ ~ .. ""6h"t \J~) ( A If ttJVIX utJ~

950 " . . ,Native Lall.cls Cottrt [HOU::iKJ at 1'1t1'{l1l/1(/lIlti, [SEI'. 18 18G7,J .J..Ylltiv(J Lm/l1s CUIII'/S [lIOUSE.J at l'Ul'tlll,fj'lJ1II i, 0,;1'

NATIVE L.UmS COURT AT TlTRA.NGANUI. occllsion, but 011 two others, nnt! they W01'O led to IUPposed to exi~t ill th~ Nntiv,' mind. III I'('gnrcl ('omlition of thcir appointment, "'hd·h!!1' by ?tir, CARLETON, in moving thnt the rorl'cs­ believc thllt tlds t.im~, Ilt all oYcnts, thcy wonld to Nativo 1D0tt~rs, ho (~Ir. Cllrll'lou) Itllll no luck 01' jll(lglllcnt ho coultl not Sll~'-h() wns pondonee betwcon the Oo\"crnnll'lIt nnd t hc J lIl1g", 1101, bo IloolI",d to 11isnppointnwnt. ])()lIbUl'HH, oon/ldenco in Go\'crlllllrnts. lie ditl 110(. hdil"'C' o.hllo"l. b!'~illnill~ to fl'n.r thc forllll'l'-tho OO\'CI'lI­ o{ tho N"tivo LAnds Court on the sitting of tho ('1'1'01' thllt hnd been discovered ill tho Act they would purposely do illjll$ti.'I', bllt thl'Y ditl lllL'nt hllLl hccn excecdingly fort·unl~w in tho tho court nt 'l'lIrnn~lmui, Inid on tho lnble of . wOllltlllltogcthcr dcfl'at tho object of the Govel'll­ not understand tho Qllcslion. 'rhe SOLlIll'r I.hc 1I1'I'oillt.m(,lIts whioh th<'y hncl nlOlk 'l'hcy tlus HOUBl', be conmlered, presulIled tho wholo mcnt, nncl would be n good ground for them to whole or that power of ul('ddling nllll mll(ltllinll' hnd oppointecl splendiclulcn nU the wily round, co.so 'I\'1l.II shown in the corre~JlolHlmICl' wll1l'h n~k for nil Ildjoul'Ilmcllt; but thnt tho Govern· ..... takeu ont of thcir hnnds, the bctter it· would mcn thoroughly conTersnnt with the nnth-o he held in his hnnd. Ho eertllinly llELd henrd mcnt hnd not hncl UIllO to ennble thcm to bring be (or the peace or the eountn- nllL1 tho finoncl's mind, nnu with t.ho Inw rdnthlg to IIl1tiyo himself lnore thnn WIIS to bo founu in \.lIC COl·th the ncce~sl\ry cvidcnce, as stl\tell by Captain or the Colony, At lnst the CQurt lYroccet\ed to matt()]·s, nnd, wllich wn.s tho highe$t Im\ise, correspondence; bllt h(' \l'ns not Illllch illclined to Diggs, he could not coinddo with. 'I'ho court lit at Turangnnui, "lint WIlS the rcsult? Anotl,er llIell who would 1I0t be brow· beaten b~· tho depend upon henrAlI," cyitlrnrr, 1\,\1(1, thrl'efOl'r, he wns probllbly nWIll'tl thnt ('ight lllont·h~ hlld adjonrnment WIIft npplied for, Extl'l'nll' di!solis· ephemern 1\'ho might bo nppointecl t.o thnt benr-It, .hould restrict llilll!rlf to wllllt he fOllnd in tho ehl)lscd Rince thnt gcntlomnn hnd b('cn nppointell faCtiOD """ mnnif,'!!tec1 nlllong~t those who hurl ,,·ho~e plnrcs might bo tnkell frolll t.11('1l\ n.t pnpers before hiDI, lind which wrl'e Inid 011 the ns Crown ngent; surC'ly thero hncl beell amplc been brought O\l"IIy frolll thrh' hOllies ngnin nnd nny mOlllcnt b~ tho ,'ote of tho Houso. lIo table by the nnthorit.y of t.he House, n~sulIling, ns time during thot period for tho Oo\'cl'nu1('nt to again, at their own cost, nllli the ~llme 1I1ll0unt cOllltl 1I0t niltill/.: "'"" IIlh·l'I·Ii.,,(I, tlll'y llnu innd should be taken. About 500 Nntin's ~tl'ongest conviction, nnd not from nny feelill~ of outbreak, llo (:\11'. L'llrll'lon) llill not thillk lh" 81\W Itlllli wltil'h t1ll'y dllillll!ll ~nl'\'l'\"'11 lill' tho hnd nssemblcd, who pre3cnted n scene of drllnl,cn nnilllosit.y (which they knew he did not entertnlll), jnd~ ~uld hll\'e giwn n morc .illlliriolls proof' of PIII'I'O$CS of lllilitnry ~etth-IIII'nt., WllllJllt l'l'fl'l'C'nco riot," . tl",t ho found fnllit with tholll in l'Cllpect to tho the lDdclX'nden('c of the court-t Il:It it. Wlls ~tlllll\('h t (1 t. IMl' who mny pro\'o \.0 bu t h<' OWllcrs of it., He then found that tho Go\'erlllllcnt ngent IlIl1ttcr which ho WBS submitting to tho lIousc. to tho Notivclt; nn in~titlltion in which thc~' cOllitl while t.hl'Y on tho othcl' hnnd hlld bren proventeu "pplied for & further adjo1ll1Illlcllt., on thc ground lIc coul~l lllmUy conct'ive nnyt.hing moro irritnt.ing plaee their entire confidenco-thon ho did II\' the fl'om Slll'\'cyinl( 1f1.lld '~hich t.llllY wi_hl'd t.o bl'ing of n clerical error in the sccond cluuse of the Act, to t.hc Nntil'cs thnll the conduct. of tho (1ol'erll­ -coune ho hOO ndopted, lJid nllTboch' (hony tllllt? befol'e tho court.. Now 1\ f11~w \\'RS nlll·god to bu 'Where the ,~ord II included" wns lllscrtl'u inste"t! IlIcnt tll1'ougholl~ tho wholo of tho mntter. It The GO,.emmcllt deni"ll it lll'1\,:ti~tlll~·, bllt th<,y di~C'o'l'cI'C'd in thl' A('t.,Ollll tlll'v wel't' to btl told thn(; of "excluded," tbus in"crting thc elfcet of the Act. WM cnlculnted to dest.roy nil their confidcllOO in ahould ftCOlIcct thnt, thnt HOlls(l hnd tleelwd th'e they, fOI' n. third tillie, hlld n~selllbll'd to no PUI'­ lIe also round thllt MI'. Preece, who nppenred ns nriti~h institutibns. lIo did 1I0t say that it iudA!pendeuco or the court, nnll cllused it to bo po~e. 1'hero opP('I\l'ed to bo nn crrol' in tho A('t, ngent for ecrtllin friellllly Nnth'cs, obJcctelllo 1111 llest rOYI'd 1111 confideneo ill tho Governlllent, appointed, not dllrallit b!7l~ 1"11(''''", bllt. 'l"(/IIIe/il nl1<,lic,'o th~y coule! obh~ill the ('ILl' of tho Qucen, their aetion would e~er beromo n Shlllll? The In- I He \\'ollltl nslt, \\'n3 t hilt t 1'1\(' 01' \\'n~ it 1I0t.? He would objcct to nn atljollrllml'nt, unless the 01' whel'O they could obtnin ncccss to lho ()rown, UntieD or tho lloll!o oll!!ht to bc' l·;II·I·it·d Ullt. : \\,,," iL lIoL !lll' duty orlljlldgl' tll "llt'"k thl' t"lIth' Govenllllent were prcpllreu to pny tho coot •. TIt~y Ilid not hclirl''' ill GO\'Cl'nol's, t.hry did not. lIe (llr. Carleton) did 1l0t.cJoubt th(' ITo1l«' \\'onlcl nIHl th~ "'hole tl'nth on nil o~rn~ioll'? 'T'h" 'N'n+h·". hn.fl l,~(\n ",,1,t t("l" "',,"V ('1'1'''''''' r1/"",l ,..,r h .... H,.,·" ;" (:J,"'T"I"''M,,,, •• ,,,ht fn'" fh" ''ll·,.,,. .• ,..,lj,,,.,CI: "I' _flq ...... " .... ,,"' ...... 'P' ""lll.v1 'n'"" t" ,1" ... ,' f 1",1 II". 10 '1'11/' .... "'p.!: ('(,11'" 'l"f /'H, •• !·I"i'I' It,. t!"".d it'll "r i

\ 01)2 Nil/iva Lallds OOllrt [HOUSH,] at lil/'((/~r;fIIl/Ii, [t:ha'. 18 1B07.] ltafh'.c Lallels COI/I·t (JIOUSE.] at Turall,1rllllli. 053 .. ------.------. for thom to hllTe 1111 the ovidcnco rcauy, nnd thc <10, bnt thcre WI\S ono thing they collid depcll(\ Yit~ nnneoesaary dctllil~, He ()rr, C:lrh'toll) IYOll,fiS .i\\(lg~ SCCIll to hM'O c:tpl'c$s~d wil.hout 1\ .ittinglll'cro lit tho direct rcq\lc~t of the Gorcl'll' 011, 1I111llcly, tlult t.ho lICxt tilllO tho cOllrt W/IS dcaired the nOlLiO to undcrslnn,l thnt· hc "'liS 1'111'1 w1<' of Cl'lllclICO 011 tho ~Ilbject. r Illust" ho",· men, He would IIddress II few n'ords to tho mlvcl'Li.cd to .it itl this place Utero would bo llO • that an illtcrft'r<'nC'(! wit h thl' judl:"S erOI', \'l'qUI'St yOU to infol'm them on whllt l\\lt.ho1"it.y Nllth'es, /lnd then IIdjourn the Court," furl.hel· Ildjoul'lIment," ~d 'W'U an inh'rf,·rt'II(,() with tlll·it· ;,.'11;'1", ~'11I1 1111"1(" II;" flirt I·hllt N"I.i\·I's 1111\'" 'b('cll lll'o· Surely it 'VIlS for the Court itself to decide lIo (HI'. Carleton) would n.sk tho Houso whnt There ...... thlldccpth illstant, cO"Cl'illg nn nlll"lllh'd wns for tho OO\'Cl'nnlcnt to deny it, Rnd ullt.i! thoy adjourn." o.nd wero still Gllxious to have their titles illTCSti· report of proceedings in the rcecnt sittillg of th!! did 80 ho 6houiLi bclicl'c it, lIo thought tlmt the He (Mr. Co.rleton) would feel IIshllllled, he gated by the lllw." NatiTo aueLI Court at 'rnm'lIIgn. 'rhc GOl'Cl'II' logicnl fnrulty of tho honornblo meDlbC'r for tho would leel asll11med for the Government., ho would 'l'ho language of tho chiof Paol'a Mntualcol'o ment regret exceedingly thn.t YOII should Im\"c Gl'e), lind Dl'll lmd entircly descrted him in the feel ashnmed for the institutions of the country, himself wus lho best proof of tha jndicious eOllrse iudulged yourself in the relllnrk! thcl'cin I'('POl'tl'l\. po~it ion he took up in thllt UUlttCI'. if it "'ould not be affirmed thnt Jndi:o Monro takcn by tho jndge, and hn.d he tnkcll o.ny OthOl' ~'hey hud 1\ right to cxpcct disrrction nlld I'C>l'l'l'e "IfI\II~'eoul't coulLl bo PI'opl'rly so (,'llled,it ,,"oulet 'Wns l>crfcctly right in Bllying that. ,Wus ho to conr~e ho would hl\\,o failed to show t{) tho froUl an oJllccr ill YOllr hono.,lble position, 11101'1.' bc pl'C'l'i~l'ly tho NlItivo Ll1nd~ COlll't., Hit.ting IIntler .uffer imputations to be enst 011 tho rOlll't itself? Nlltires tllllL t.ho ('OUl·t WIIS 1I0t to bo ol'cr·riddon CIIJlociull,. hlll'ing fe-gnrLl to YOllr lon~ rxpcI'icll<'<' thl' E'I~t c.:oa~t Land 1·itll·s Im'c.tiglllioll Act., ill Something ,rna wrong, and it. "'0.9 his dut.y to tell by tho Oovcm\llont. lIo belioved, had thnt aud high chaNCter ill the public ~crricl', YOlll' _whit,1t yoU were pl·esillillg. Dut you 'ought to tho NBtil'cs whero tho wrong wo.s, and thnt tho oonrso not beeu tnken, the terminlltiOIl of those £lIniliaiity with MGOri tcmper lind modcs of' hnrc been n wnrc, anet if it wcro lIeces8n.I'Y to IIlh'clot court was their maillltny untl II gullrtlntcc fOl' proceedings woulll hl\ve been 1\ riot. Insteo.c1 of thought, but mo:st o( aU to tho lliflleultics ill to the mbjl'ct ill court, YOII shoulLi have expll1.illccl, pence. The judge wo.s therefore not wrong on t.hat, 11. Nntive stood up lind cxpresscd himsclf, paeiIyin§ tlto COUlltM' to which YOll ho.vc bcclrn thnt tlte tnkillg oflnml hIlS bcell n.ll'gislllth·c Aet-~ thnt occasion. lInd ho (Ur. C1l.1"leton) boon in coolly, doliborlltoly und quictly, to tile effoct that ,,·itnCN.· politicul Pllllishulellt (or thc offel\cc' of rebclliolll tho p10ce o( Judge ?Ionro he wonld hM'O Bllid ho Will prepnrod to submit to tho (lOcieioll of the He heard a " henr, hen 1''' (I'I)m tho Govcrmuent whilst thl! COUl'ts-)\I\tive Lnnds nllll Compol\su. OTOry syllable oC tho.t lllllgunge himself, und some· court itself. Deneh. Dill it ever occur to hOllonlble Sl'ntleulcn tion-m'e nlikc cstn.blishcd by tho Lcgislaturo thing more. Thejudgo went on to 81\y thllt:-· Now thon for the Pl'Ocecclillgs of tho GOVOI'l· tl.ul~ the judge 1\'11.1 excreising tltllt wn. discretion to ",ntch ol'er thl) interests of tho inllocent. I Ie He wished to mention 0110 thin~, Ho hnd ment, in rego.rd to t.hat nddress of tho Judgo. which the House IlDd GOl'ernmeut hn~l1l. right to l'l.'gret thnt you should hn,'o thought. fit to state hCllrd, when In Auekl1l.nd, that tho 1\ative8 hore 'l'ho honornble membel' for Grey nnd Doll ex~ !rom him; that ill ;what he ~1l.id he was "b",)l\ltl'I~', beforehnnd, without. ~how 01' hl'lI1'ing hnd been told th1l.t tho Kooti 'l'1l.ugo \Vhenun sent 11. letter in which he first nskcd whether tho gwded by tha~ loug eXpu!,l!lt 1'1nl'c whatevcr lllll)" hnppen." would take this opportuuit)' of t<,lling thcm tJlIl.t of that rcport ho wrotc the lettel' whieh he CUI'. wlili:h tho honomble mcul~'r (or Grl'Y lind Dell The Gon'rlllncnt dictating I·ho ('olll'.e II judge this was not the und·T1l.king (Compensation) Cnrleton) would rell(1 to the lIollse, H1l.viug reterred to; tlu.t he \\'M 1I0t likdy to fllhi(\' hi~ ~ItO\\lt\ tnke! Anything more monstrous, 01' less Court. This court 11'118 cltnblishe(l undcr the grent rcspeet for tho.t hon01'llble member he coul

054 Na'livo Lanas Oow't [IroUSE.] at Tlirall(Jamii, [SEP, 18 1867,J };ral iV(J L(1I117~' OOllrt [HOUSE,] at Pllrall,,!(I)wi, 05[) ------_._------_.. _---_._- ---.. - .---- -.------_ ... bRice ~holl!tl induco gt'CIIler cn"c; .I11U I ",,~g~"I. \\'IIK Ll"d. 110 inle,·r..rpnpc rOIlI(1 ho l.fllm'II(.(l II~ WM eoulposrli. Ho\\' IIh'II1't\ it. \\'01111<1 I", lill', (.Jill I, 110 GO\'c,',IlI\, IUIlI I h" <'''l1litlcl1cc of tho thnt tho fnIso position in which yout' wunt, of e,t'­ t·o thc COIIl'lij of law, It wo.s not only on tlmt anv mCllIbcl" of the L"l(blalul'L' 10 gct Ill' 111111 .l':IlLin'., II lilt l.h"I, (.J1l,," olily bdic\'l',1 il1 tho c\IIlUpectiol\ 11118 plnccd thl) comt will be bL'st oCl'nsiou, not only 'iu I'cfel'enco to tho N"ti\'o denounco I' plIl,ticulrll' (+0\'I'1'1111I1'1It 1.1"1':111"" >0111(\ 1\ QUI','n, 'Vhl'1I Im(l I he ~:l1 il'es "\'l'I' cOlllllluni, cSCllp<.'d fl'om by your liquidllting tho nll'onnt~ Lllnc1~ Courl;, thut illtel'fol'onco 1ll1.d tuken pIneo, l'fC'\"ious UdlUilli,tl'atiol1 hlltl tI"l1e H01l1dhin~. clltell wilh (ll' IIPPI'O:ll.'hl'c\ tllU Que"lI, I'XCCpt yourself," but iL I",d Ill~o tuken pluco with r"g'L1'll 10 tho "')uch Wde not 1\)11"'<)\""\ "I'. ] \,,, di"""1I1 ('(\ 1"'0111 ; l.ll1ooll:.:h 1·11l' t h"'("'u,,,'? A "it yd. t·h" Hon~o wn~ lIe wight tum thl1t int.o ridicule, but. he con' 8111'1'01110 COIlI't., ill n luannel' tho.t wns llighly the lIouol'l1bl\! gcntl,'nlllll's l\c'llill'tioll tllllt thel\) , tolt! by its ohlest melllbc,', by Olle who spol'inlly ceivc!1 it to bo 110 la.nghing nllltter, uncI ho wns objcctio'lI\blco lIo did not specitllly locfel' to tho 1na aU111eccS5l1r~' cOlltl1lni~.l' ol':lC't·ic'l1 l'''UII' \,:lI't. \ nll,I'ibllt,'tll.(\ hi:u~,'l!' '1 kllowlcllgo of Nath'O elm' exceedingly ~rry tba.t such nn expression shoulc1 presont ndmillistrntion, COl' ho looked UpOIl tho oC pol'llOna who Illllllilliz!LCI'l'tl the IIflilil's of tho il'llctlll', t1ult (,hl' ~o.tll'c" did 1I0t beliol") ill tho hnTD escn}lCd from nn)' meu\bcr of 11. Go\'ornmcnt GCllcl'nl Qo\'crul11cllt liS 0110 nlll\ continuous, lIo couutry lit dill'crcnt lil\lo~, 01' that, it wnR lIot I GOlloml QO\'el'llIncllt 01' I'.ho (lUYCI'nOI', but, only lhl1.t 110 was bound tQ respect, Ho would ask the hnd SCOII eOl'l'espomlcllcc with tho judges luic1 on quito possiblo to dis('crn b"twccn the COIII'"O t'llwn I in t.ho QUCl'II, who P"I\('[.iCIIU\, lIe\'('I' intel'forod HOllso to recollect thnt in t·heir relntions with lho tho !.rlblo, of which hc wus usho.lllcd; 1\11(1 on 0.11 bI ono Go'\"orn\ll(,lIt und by IInothel', It W:lS 1\ I with thcUl, 1Il1<.1 1I0n'I' woutd, It wOll1d bo Nntives it \I'M 1I0t only technicnl points of IIIW occllsions wllllle,'cl' UpOIl which 1.0 pel'cciYcl1 tho most atrnngo docLrinc, 1111(1 OliO ('onh'III'Y 10 1111 tl'l\chil1g them to lelln UpOIl tho YCl'y I'o~tellest thut lind to bo cOll5i(lcrod, It WI1.S not for tlil'Ul slightest illclillllt.ion to I1.ny interfl'l'cm'c with tho parliamclIIlll'Y pl'ncliee, llmt t.ho jiwt of 0110 /I'eetl if thcy \\'el'o IIdyi~cll !lot 1·0 listcn to either to c01l8id(lr .\lono whether Judge Monro wns judicirll e'OUI'ls, so long should he ri~e to protest GO"enlulcnt lunilll( l'I'I'l'cl inll pUI,ticuhll' dil'oc(.ioll tho GOYOl'nOl' 01' the GO\°CI'IIIHCIlt. '1'11111. \\,M whnt tcclmicnlly jllstificl\ in IIwllrc1ing tho C03t~, but ngninst it in tho stl'Ol\gc.t· tel'UlS, 110 could \lot .: aholll(l bo IIcl'1', uroll if I ho jUdgl'~ \n'I'u tiwcpL U."'IIY '''l'ho G(h'ornUlont nro sorry to IlIlYe thus 10 'l'iullri, Asscssol's," lIo had 110 dcsiro to PI'CSS lIr, V.U1LETOX,-I wi,1I 10 Il'a\'c it l'util',olv : IIltOgctlWI" He nll(1 Ilis ('Olll'II~lIl'~ would 14ko tlw 1l1IIttel' to II di"isioll, bllt ho would 1011\'0 it to nniumdvort upon your proceeuings, It is ncees­ to tho law, •. 1 I hot· I'c~poll~ibilit.\, U\1011 l.hl'III~l'!I'l'~, Wlll'lI lhl'y wry, ho\ro,\"cr, to remind you that though they the HOllso tQ BOY what COlll'BO shollid bc IIdoptod !Iro Sl'.lFJ:'ORD,-Tlio lllw cOllill 1I0t Ih'ul tholl:;hl j'llblie illkl'I':;I, lll'lIU1l1lll'd it. If, thol'oo ha.\'l' official duties a.s a suitor in the COIII't, t.hey in I'eferenco to it., ' ·wilh thc d'liI~' ollilirs of thl' Xllti,'cs, It 11:111 110 I 1'01"" Ihc 101101'l\bl" lI1"lI1bcl' thou:;;ht. that \1'115 1\\1 lUI\'o fuuctlons lIS glUwui'l1lS of Iwne(l I1l1d ol·del' 'MI'. '.1', MACFARLANE scco!}flcd t.ho motioll, 1I10re I'ight to illlcrf,'l'o with th"1II tholl it Imti 10 Ib1ljll'OPl'I' l','~ition, 01' OIW whil'11 would not bo which YOllr di,loYI\I tOile nllly seriously il1l\ll'(\c' lIIol.IOll IImt!e, 1111t! (lllcstioll pl'oposcd, "1'lmt illterfL'I'I' with thc hOllol11blc gelltlt'ululI,:lo 1011:.: us I1p Idd by I Ill' L('gi,llItl1l'C, ho llIld 1I0W II fnil' Their confldeneo ill your di~el'cLioll lIud illl­ tim HOII~", 011 (ho n('xt sitt.il1g d",', do l'csolvo he! diduot ollellc! IIguill~t it, It 0111." sJ"Pl"'11 in , ol'pol'tllllil.,\' of laking i,~u,' IIpon. t.ho subject., lIu itself into COllllllittee of tile wholo to considcl' of partiulity will 1I0t bo easily restorcd,-I hn\'(', &c., "'h"l1 II 1>CI':;UII IlIId bl'COlllC II cl'illlilllll, 01' II .U.- I \1'0111,1 1"11 \'L' (0 hi~ hlllllll'aull' "\ll1l'lIg111', who wn~ "J, C, RICIDto:Sl>." 1111 IIlhlrcss to t.ho GOVCI'1I0l', pl'nying th"t. His !>ec!.cll erilllillol, lIud III) to tllllt tilll\! it WII. I flllld!hll' with Ihc dd:lil~, 10 nel\'I'I't IlIul'() pllI'tic\lo It IIInltcl'Cd ,"cry little to tho judge what COll­ EX"c1lc'Il',Y will 1'C'colll\1lend the "Pl'rolwilltion of altogether dOl'mullt, If by the Ill\\' h,' UlCUllt II ,1.11'1,1' to SOIIlC obsL'I'l'IIliun., 01' (h" hOl1onlblo IIdcllce tho Go\'erllUlcnL lIIight have in hiw, bO £ii Us, Uti" costs IIWI\I'dcc1 Ilt II silting of the '-'OUl't of jllcli"lItUI'l', it ljll\'C 110 l'OUII:;d, bllt "111," I III l'UIb"" Jill' the Uny 01' 1"lnllll", bUL he wi.hccl i'lIILiyo Lllnt!s COlll't of New ZCII!rl1ld, held lit long us he I'etllined tho eOllfidcnco of thllt House; pronounce(\ II 6Cllt"lIl'C whclI II 1Il1'UlbL'I' of th.: Iit to bu lli.lilll'll,\· umier.loot! thllt he .houM but ill Iho Illst lJ1\l'!1f(rllph tho OoYC'rll1l1ent 'l'lI1'llugunui on tho ·llh dlly of J lily, 18G7, belol'" cOU1mullit,· WIIS bl'ought b"!'0I,,1 i(, Tho l'Olll't nC\'CI' ~cl'llple (0 :;II'pclu.l till! 1\('lioll of'1\ COIIl't IItwmptet\ to U1a.ko him belio,"o thnt lit onc timo !Iunry A, H, MOIll'O, E~lh oj llllgo, Ilm\ 'Vi,'cln\\ rcfCI'I'I.,d t"; by th~' houoI1.bk, IIIOlllb"I' \\'lIS Cl'l'utCc\ 01'".1l tClltllti\-e .1 ehlll'uclcl', ulllI ono w\tidt wus they woro infcrior to the court, nllll lit unothcr 1'0 \Vhool'o Ilml '.rlllnihnnll 'l'imil'i, AS8e~sol's,"- Ii {or A 111Cl!illl OCQllliOIl, 1I11l1 \\,11. I'l'nlll' II COIJIIMI~Il' ! Illto:;ctlll'l'lIl1 cXI'L'l'inIl'IIL, II~ IllIIt which it \\,II~ (.111', Ca fletoll,) • tiule SQ superior u.s to be nble to gi\'o c1irel'tion~. ,., lion COl\l't 1I1ll1(,I' IlllOthcl' 1"llI10,' ][0 ,'util'd,\' I Pl'ol'u~cd tu hold undel' lho Ellst (JOllSt ~'iUo. 'l'hey supposed Ihcmselyt~s superior to eyo"ything i'[I'. H1'AFFORD wlIS not goillf( to follow tho u;r~cd ill tlI,' h'I'I1I~ hi~ hOllOl11blc l'(,l1L'ugnc hlld ,Act, It hUll bl'CIl II qllc.tloll 01' }>olioy to LTOIlto hononlblc momber fOI' tho 13.IY of Isll\nds through .~: II~ on~c; they brought to his mind 1\ p11l'1\5c 01' lIlad" II~C of ill l'l'I\'I'clIl.'e 10 thc COlltillct· 01' )I!-, i thclic l'OIlI't~, IIllll it wus C\'l'I'Y lillY bl'coming II Clecl'o& :- thc wllolo of whnt ,me {or him I\n \\1I\\slUllly !IOllloO, H,' ellulcl VIII,\' ~lIy it waa WI'," 10 \l'ollltl public inlel'C&t~, (,\,(~1I Ihough it might bu tnken nttompting to nrl'ogote to thcUlsC'heso ](e hnd more thon bring \IInttcra into a slnto of .. meddlo hllvc IlllO\fcd hilll to I'II.h 10 thnt HOIIS<', liS he IIntil'I' the IlUlIIC ()f 1\ eOlll't, Il"oidcd detuils os much os possible, ][0 ha.(l nnt! lIIuddk" 1'hnt phraso hnd, by tho wny, lI)lpearel\ to 1111\'0 UOIIC, :iiII-, J', O,1UOHMOND Illll!t sny that he "CI'Y risen for th~ D1nilllennnee 01 n pl'inciple', nnd becn II1nde \lSC of by tho honornblo meDlbor for :Mr, C.utLETOX,-l'ho hOllombllJ mClllb"I'is 11lllch l'l'gl'l'!leti t·hc l'OIlI'Se tllkclI b,' his honol'fiblu it was selUonl he dill ri.e el:cC'l'L fOl' ~lIch II the' f,18 1807,] ..:.Yalit'o Lrll/rll1 C'ollr/ [IIOU8R] (It 1:111,(111,'1"1/ /I i, 057 053 ._-_. -.- ---- rofereilco wu lllBdc, lIowovcr, tho honor· fdellCl might, tlmt whlltovCl' good nlil(ht hnvo ill,.oh'cJ, it \\'ns Ih,' (lntr of CV(,I'V lornl I thnt AI~]1 Ihe aO\,~I'III\1~nt wi_IIN1 III 111'01"l' to nblo gouticllum 111~d thought fit lo bring tho rC8ultcli from t hO'llction of tho COUI'I,8, thoy wero 111an to Jlllt tho h'lIth' C"liI'ly holi;I'n j,h(l thn MUllt,l'Y thllt tI",), 111111 110 Ilt'~il'" to po·~o~~ mnttol' bofore tho public, nml Ite should not of n tl""lsil.ol'Y cll/wn('tel', ·lInd could ollly be pcople Ihnt Ih~"l' \I'll" 110 ""c)1I ,'n:n'l: II_ 'I Ih"II1",'II','" nr 1111111 lin 1.1", g,,"t (',,,,,.1 l'X("'l't ill aiL silent o.ftor tho roulnrlcs ho hilt! IUllllo I for, l,xpccLctllo hl.t !il'o 01' lOll YOCII"4, .. 11m" Inking "Olll'\"" IIl11\ \1ll\I: it WII8 thu ,'0.","'" Ihn int"I'".ld orLIIlll'Cllony, with I h,' "it'\\' [1(' lllllkillg imleou, ho thought lhut Lho hUllol'llbl" g"lIl.lo. Ilk CAHL1C'l'O::-l,-'l'III'y will hl.t ,Is 10llg na or 0, Court ,,"IIIC'I' 1.0 gil'" t,llIIn 10 11.1111, 'f'h" I.h"." 1"'1''''''" I'"" rOl' Ihl' .IlI'I'I'"."inn 01' \.1", (\i •• IUnu'. hnbit of riding hobbks lHld Icd him Ihc ~util'o r.lC~, ' court ho did hi~ \ItUlOSt t.o Co.\\SO to bo tlis, tl\I'blll1CC8 who )uld crc'ltot\ them, 'rhis WM iuto troublo on thnt occ::lSion, "'ith rcg'll'{l Mr. 1UCIBIOND,-'l'hey would, 110 doubt I liked wo.s 1'(/1' e.1'call~ll('e II COll!'t, fOl' giYing Cl\!'ryin~ out t.ho poliry of 8,'lf·rL'lillll~c inllllglll'ntcd to tho N o.tivo Lnnds Courts genel'ully ho but hc trusted tho.t !lftol' u. fow yenl's 0110 judgo I1nd not for tflking ItL11cl. lIo would (t' ZN.J.mcl HeHlrllll'l,t." 1I1l,1 cOlllpellsnting Iho C"1011l11y ?\lIli\'0~ COl,thcir not justify thc sort of Bddress 1111ldc nt 'I'm'lIl1gn, cially if tho so persons lire 1,lso public olliccrs A~t, thcv coulel hnvo d0110 so, It wus 1\ dillicult S"l'l'ICeS, \Vcre thcsc Illell II'ho hud Msistcd 'fho judge of the court Oil the Ell,t (Jo,,,,t, I'cmilltkd ILohlillg high l'O"ll\lIlS," tll;k, nnZl one which 11I1l1 llCYOl' bC"1I 111l1k,'11I](011 in Jlll\lin~ 11011'11 l'cb011ioll 10 Iml'o no I'CII'UI'el? him of tho frog in tho fnblc, which Wished to The.c WOI'l s rcfel'red to tho lIction tuken by by nlly other GoverllUlcnt, to 1'1'0"0 tho t.itlcs to lIo thought thcit' s"l'\"iees should bc rClllcUlbCl-ec1, swell its"lf out 10 tho sizu of 1I bull. Indoed, tho :MI', lll'Ouldicld,I.11C Crown 1'l'osccut.OI' iu Auck· !tmd of n Inl'gc numher of P"\'SOIlS who \UI,1bcell IInti \.11111: ll\l1l1 8110111,111\'0 bo llll"," lo eOlllpen~lIto bull which ho omulo.ted, . tho high courts of luw, Illnd, who, 0\1 II rccent oCCI'SiOIl, did not qllito ill I'l'bcllioll, MI', Momo \\'IIS n\\"II1'O of tho tho 111I('orl.llllllto ElIl'opcnn settl')I's who hnd nOTe: lOt their'horn up 10 high, or undortook to ugrel' II'Ilh tho Juugo 011 Lhe clue.Lion ",hoLhel' 1I dit1leultic~, 'l'hllro \\'~8, in pIli ill torUl8, 1\ COli' sIIJl\'",od, 110 \1'115 not n\\'I\1'O I,lmt. COIIIl'cll8ntioll lecture the Executivo GO\'OrllUlcllt lIS ho lmd certllin iut.crj1relol' could not bo olllled nWlly from apirney o.t '1'Ul'o,l1go. to l)rcl',,"t the Govel'n. ~O\lld bo proddcc1 in IIny othcl' WilY, In I'cfcl'elleo done, no 'vo~d not go into tho question of tho tho Lllnds Court t~ I.ho Supromo Court, but mont from mnking nuy title to any Inuds whnt. to tho LIIII(l Courts, if tho GOI'cl'nlllellt ditl IIOt compo,ro.tivo dignity of theso judge8, 'rho Houso it IIpplicd c:mctly to tho conduct of Jl:b-, over I 1\ eonspirncy not fOl' tho benofit of t,ho stlly nction \l1\(lCI' CCI'IIIin ('i!'CII\11stnnccs, the would to.ko its o\l'n view whethcr the Mini.ters Mouro ilL Turllllg'l, 'l'be chllrgo IIguii18t pilI" unfol'tunllto II1Iu·hnus, bllt of tho so·cnllO(l loyul wholo coulIll'y might bo pl'ccipitated illto W01', lllllccd on thoso bcncllcs WCI'O in 0. lower 50ci\ll ticnh\l' lllcmbel'~, of having 11Ill'l'icd 13ills inllnbitnnts theuueh-c~, \Vhcmit \\"I\S I'Cl11om. lIo lmcll' of II clistl'ict in tho D,i\' of Plcnty Wh"I'O, position than tho intorl(rctors o.l1d ogontl of thcir through tho liouse, should not '11l1VO beon bored thllt 011 tho outbl'o1lk of hostilit.ios t·hol'o tho II fo\\" months ngo, tho Pl'occcdlng~ ot' the COlll't " meddling o.nd muddling" who hckl the office of made by tho honol'a.blo membe1' IIftc1' his GOTennllCllt COUlt\llOt fl11(1 twonty 111011 to 8tl\!1(1 \\"ould ho,.c led t.o II cOllllict bctm:,('n thl'ee tribes, jlldgt', JIe IIlW his hOllornbll1 fl'iend Wlls' plltting CXIlL'I'irllcc; fOl' ho wcll knew th1lt in tho CIl.SO of by thl!11l, RR ouo·h,,)f "'CI'n ill Op~1l l'ohoHiol1 nnr1 'rho GOl'01'lI1ll01lt ~holllc1 rorillinly intrl'pMo ill dO\\11 thllt'word intcrpretel' to nlllko II point oC it. e\"ery lJill tho puulie intol'cst \1'115 hedl(od round the ol·h('1' 11l\1f wnitillg to ,pco, if ho might IISO tI ruses II'l,cl'o clll.I1!(Cl' to t.11(, OolollY \\"n~ thl'('nlcllcd, lIe' would IInticipate him, Ilntl sny of tll1'l'o 01' by "mst IIlImbol' of fOl'llIs, 'l'ho Houso 11I\d lit homely phrllse, holY tho (,lit \youlcl JUI1lP, tho Ho hnd \'ol'~' grellt ("ith in 111111'" of tho 00lcCI'8, four judges of theso courts, thut they 11Ild dUlle ,til c\'e1l1.8 I'c·protluced tho 1JiJI it"ell' this yelll'l HoUlo ,,"oulLl ngl'('o t·1Int, it, W!IS 1\1\ i11Cli~cl'cot, ~01ll0 of who11l Imd ~""I'cc\ 11I;,!t'\' lli\l\~olf fOl' lind were doing groat sorvico to lhe country, nml ulltl 110 circllUlstullcO of tho pu,ssing of tho IInfl1h', most wrong, nnd highly e"lIslII'uble nction mnnv ,'CI\1'S, und \\'cre 11011' j\l(lgl's of the N'ntivo tho,t ho lll~d 0. high respcct nnd pcrsollnll'l'g,wd Act \\'us 1111 cxcuso for the jlldgo of tho oC Mr, Monro to cndcn\'otll' to nct in 8\1ch a. wa.y Lnlltls' CO\ll't, ,\I\(\ ht) hlld C\'OI:Y ('onfi,l~nco in for thein, for ho did not illtend to gi ra I ho hOllOI" 1.:11\11. Comt 01' 'Illy olle elso I'dleot.illg upon it, ns might SUppOl't n ('on~pil'l\cy to d(lfllnt tho poli!')' tlll'il' judgmcnt. Ho \l'IIS 1101., holl'c\'cl', Ruch 0, IIblo member nil opportullit.y of embroiling him His houol'llblo fl'iond 8uill thllt thcl'o \l'l\lI 110 oC tho L('gislntllr(', '1'h" honomhle nlt~ll1b"I' hn~l bL'li(\\'{'I' in t.ho ~~'8tCIII of Llil'('ct l'\II'dln~e~ ns thc ,,.itl! them, 'rhoy had now to c011sidor thot c\'itlcllce of nn nttcmpt to dl'gl'1I,lo tho ~ovorll' talkcd of tho indt'pl'nc1e1lrc of COlII'tS of 111\1', but houomul" U1~l\1bcI' 1"'1' the 13l\\' of Isla.ntls, Ollt the Court o,t 'furnngn, "'hi"h ,rns sitting nll'nt so us to C10\'lltO tho Nlllh'o Lllllds COllrt, the HotlS(' woulcl scc Ihut. thi~ WlIS II (,IISC ,wi of th" 000 olel clnims Fnid to IIn,'o bc"n settled I\S r. Conns~tion Court, WWI ill l'eulity but, Iho WOI"!;; ho l'C\I,1 WOI'O pel'l,'elly c!CIII'-"'rhll 9t11t1'ia, '1'hc IItnlil'~ of the EII~t. Const, \\'C'I'(' ill n 1111(1 pn;:~,~cl thl'ou/.:h Lllud ('OUl't~, \'''1',1' fol\' inc1eed carrying out· a greo,t political idcI\ of l·ho t\ctioll llikell by tllll UOI'erlllllent would tend ,"cry stote of esp"ejlll coufusioll, 1101. by I·hc filult or Ihl' l,,)(1111 b,~ o('~upi"ll Pl'lll'l'uuly bv l1'l' EUl'opcuns, liOUlO, quite (Uff'Cl'6ut Crem tho.t of tha NlI.ti\"o much to llrstl'o\' the cOllfidclIC() of tho NIlti\'CS in G01"cmmcnt, but. thl'ough thc' ('01IC1ud of t,he \Vilh 1110 ('xcrptiou of SOIl1C or'th(' l1Iissioullri('s LIlud. Acta oC 18(12 nllc} 1865, Tho L('gi~lutlll'c, Ihe CUlIrt." A~lIill," H" 8holllclllOt fCc!slIl'\lrisod inhnbitllnts, nnd he thought I,hnt 011,1' 10)'111 prl'SOIl, who rr.ilkcl IIpon I he l:lntl, lind who hnd to mllko holdins, the opinion oC hil honol1lblo fricml, th1lt ut Ihl'lI' l'xlll'l',,~ill:; Iheir fcdillll" H(.rollll y 011 'fell nl'CJ"ninll'd \l'ilh tho IIl1ilil'B or Ihl1 cOllnl.I'\', 8el'l'l'ul pi l'C'('\1\C'ul ptl,l'1l1cnl. 10 ~0C'III'n Ihrit'lillt', IOmetlimg like continuity I\1\d collsistoncl' WIlS n lml'illg ngllill to be tli:mppoillt"ll. 1'hc dclll)' wus wOllld Imrc hc~itnt.cd bcfol'o IIllol\'ing himself 1.0 WI'\" foil', COl11pIIl'ulh'cly, of lhc olel plll'chnsers Tery high nccossity of GOI'CrnUlel1t., diu, III 1800, not the dOlllg of the COUl't," '1'he rcport' oriq1l111Uy bring thc Gorol'))1\1ont of tho Colony into (lis· hnct sC('I\I'NI bOlln fide titles I ns n ]11'001' of lI'hidl t1liuk fit to co.rry out tho idc~ of cou06cntion, sloocl-" He fdt thllt thcy \l'CI'(\ iIl·uscu, Dllt it r~pllte, most of t.ho lanel so pUl'chuscII \l'lIS not·, I\ud co1l1d which hnd guided its policy for t hl'co or fOHr W'I> lIut lllL' Call1l, of Lhe COIII't·," JJllt !lh', Monl'o ~[r. 31cLEA~ cOIII,l not 11110\1' Lila I'CIlIlII'ks of 1I0t., ill 111n11)' cnses, bo occllpiC'd, Silica tho years. ill rcspect of ofrcndors 011 thc :Enst CO:lst, h",1 ~nnrllcd t.llI" dOll'll, In a.l1othor pillce thcro the honoroblc member fOl' tho lJuy of hlnndR to ycnl' 1810, thoro huc! hecli l'ontinunl hl'III't· o.nd brought· their Innds IIndcl' thi. Ellst Const ""I,; whaL. lIIight Ul' "allc,1 1111 illsillunt.1011 1I~!lillst JXU3 unnoticcd, Ho 1If.:1'l',,,1 with t.ho COllllllis' 11IlI'ning. 1111(1 ,lisl'lll."~ bl'lIl'C<'ll the ~C\l1C'I'R J..u.\l(l~ 'rille InvCBtigntioll Aet I IIncl nlly 0110 11." 1""lhr"lll,'" {If I.h" OO"C'I'III",·"t-·" No\\' 1\ .ioner or Customs I.hllt. Ihl' ]';",:f. COII,t. \I'll" II IIncl Ih" l'illtiI'C'" cll1,'ill~ lit" II'holo 1Il"'iod going thoro in the Ctlpncity of Jutlg'!, 1I0Ulill:llly, 01' flail' b ,;\il'e:~d to Ul! tli'l!OI'l'I'l"I." His hUllllmufo spceinl ('115(', requiriug Ihc ~Iroll~ tll'lJI or \,0 II'C I' "I' 1.1\0 cxi.I."IIC'O of Ihe (lId rOlll'ls, .,l.fter roan,. of commissioner, to illqUlrc iulo tho rl'bdlion, fl'l~lItl u\.o took exception I

1)(,8 Native Lands COltl'! [HOU~E.J at l'({I'(III:7(IIWi, [8£1', 18 1807,J .I.Vlltice L((Jlill1 (luur(. [lIOU8B,J at l'UI'IIII!J{(l/lIl, 050

elilpUled by tho Nath'es nfter,,·nrllR. It wns t.ruc :-rr. !lIe-LEAN lIlcnnt to sny thnt nominnlly nnd hI! Iruitt'd his snying so would not do him Ill' ? I,ct him 8t'0 the Illnn to hllee up tho gloTe) the NatiTes migbt hnyc ncquiesced in the decision th~l'e \I'or~ six hundrcd c1nims pussed through tho any injury, From tho petition thnt ho hnd pro· hc hCld tlll'own down in regnl'(l to hid wl'iting~, lind' of tho Nntivo Lnntls Courts, if it suitcd t·hcir comt, but mnny of thoso clnims hnd noyer been Bented it wns elt'nl' t·he NlltiTes w(.'l'e IImcious to ho WI\3 pl'cpnrcd to ont.er into the I'in~ ngnin. purposo nl thotimo to do so; 01' if, 11M \\'IV< tnlwn l'M~r~"ion' of, tllI(l the Ill'oof 01' n I:ood tit.lo h31'0 their I illc t'st'lbli.hed, Oflhose Z::in NlIt.iVCS, 'I'hn honol,lble 1II00nb~r's n1'glllu,'nt., 1.lmt; t.!U'I'" rrequently tho casc, ono clnB~ only of the \\'11." lhll.t lllCY l·ould cnjoy it pcnccnuly. Tho I1Inny of thom wcrt' lIut in I'cudlion, '1'ho"l' \\'lId no eontinuily of Gl'norlll Uon'I'nllll'lIt, lold eIWmnuts wns represenlec1. But. tho day "'lUI 11111(1 II'n3 nUl'er occupied, 1\1Il1 consequently thu Nntil'c~ wel'o 1I0t going before the COIII't to St't' wit.h tho grl'nlt'st 1'ol'eo IIgllinst himsl'lt', If thllt not fnr distnnt when thOM court s "'ould bo t.itle 11'1\.5 11el'el' proycd. Not mol'u tlUIIl u tent.1t h011' much confiscated hUld thoy wel'o to get blICk, continuity bo not nsstllllcd, Lhell it WI~S t.ho duty repenled, nnd tho neccssity for doill~ n\\'ay lrith of' the six hundred cl1lims could ever be settled but to PI'OI'O tho titlo t.o their own Innd_ 'rho of tho GOTernlllent to IC[lvO orr intol'feriug in them wou\ III~t twont.y-cight yelll'~ thoy hll(l ~[r, CAltLE'1'O~, in r('ph', ~nid hl1 hatl but th~ lalli', portion oC thnt lIoule? And if tho ~lItil'e8 had tuught tll(\ Nntin's to bcliol'elllllt t.ho WII8tO iLlIlds little to nnswcr I ho hlld hl'llI';1 bul. lit.! ItI ht'l'olHl )l!', CAltLE'l'OX (lhl 1I0L oU,j.oct, buL lhoy h,u1 confidonce ill thnt lIonlo thoY!llust hnl'e confl· of thc Colony uelonged to thcm. 'l'hcy hud m,~lo the eontrlltliction of whut ht' hntl .lnte(l. l\n;1 his IIC I'l' " sh','n t·holll tho wholo ot' (.ho Inw, l~rom dence in tho honornblo memucl's of tho GOl'ern­ n gl'cnt step in ndmnco ill !lotting the Nntives to only repl! to thut Will to reitl'rnto, 11(, need the urginniug, hnd Ihey given tho Xntil'''s tho ment, who formed n pllrt of it, lIe IIl11in· cOllie to thoso courts, and to closo thoso Innds acnrocly tronblo the Houso with tho I'l'itcl'ntion or SIIl'IO pril'i!('go I\S 1helll~oh'es? If t.hey 11I\d not tainccl toot tboy IU1(l confidcllco in tho GOI'erll' wilh n Ol'oll'n 'ritlo. Until thoy got, thoso lands what ho hnd nln.'lIdy nlle~cd, Tho honol'lIblt1 brought qlllLl'k doctoring into piny, it' t.hey h,ld loft ment, and whilo tho honornblo' Ilentlcmnn nt closed with n Crowil 'I'itlo they should IlCyer 11nl'o mcnlber nt tho hend 'of tht! GO\'('I'nlllent hn<1 com· Ihelll nlouo lit llrdt to tho IIctlon of tho wholo of the hCQ(l oC tho GOTcMlmcnt rcmnllletl in thnt pence ill tho country, It wns somo two ycn" ngo pwncd lomewhnt bitterly bcCQIU\) ho hntln\1l'gl!d' tht. lilli', if Ihcy IlIId gil'cn tho until'es Iho whole petition tho Nntif't'I would hn\'o confidence, ns ho .inre the ]\lItil'cs II'('I'C fll'Rt, 1101,iflcd thnt n TJIlnd thnt the X atiTes hnd no couficlcllt'O in tht' GOI·el'n· ot' tho~e I'ighl. thl'Y enjo,I'ed thelllsdl'<'~, ho IIlnin­ W1U kllown nlmost since tho eODlmenoomcnt of Court would bo held on tho East Const, 'l'ho meut, lIe hlld Itudied tho Nnlil'o chnrnctt1r fill' Inined thl'Y would 1Il'\'l'r 11111'0 hlld 'my llillloult.y tho Colony, in connoction with public nflhil.,., Nntil'o, hnd met 011 Ihl'eo lueeouivo ocell~ioll' nlu1 t,,·o-nllll·t,Yonty ),,,nl'll, nll(l hm! pOllibh' pnid fRr wilh Ihelll, If Ih"I'u wnt 'Illy (lilllNllt;y thor" WIIK Tho Nati,-el brul oonfluonco in tho pl'esent tho eOlll't ndjoul'llOd. '1'110 Nnth'os wel'o in a smto more IIttention to it tbnu nllY IIll'ulbt1r of tho eto· II. 1't'lIledy undl'r the ouly redecllling cilluso or tho GOft'mmout, nUll he lind evory beliof th~y would of grcl\t distreu fl'Onl tho Ilumbol' of pOl'80n8 thnt vorDment, aud lueh WlU hi. firm opinion, It could <'·oll~titlltioll Act. '!'hcro WIlS n cllltUo gil'ing continuo to retnin that eonfidrncc. J r0 con~i("'l'ed cnlllC there to lIleet tho COlll·t, nnel fl'OUl tho )'osi· be but a mnttcr of opinion nllcr all;. but 80 fllr ,u powcr to prodnim Nlltirc districts, in which tho that, in jUiticc to tho Europcull lettle"d who hml ,lclIL NI\tiru~ hllvinl;: to Kllpply tht,ul with 1))'0' fl1cta could be ndduced. tholMl fuch woul

960 ltati1)c Lalllls Court, [HOUSE,] Acclilllali~tioJl of SlIlmOll, [Sgp, 18 1867,] Acclimatization [HOUSE,] oj Salmoll, 961 ------'-'---"-'- .- t'1I.nkl, Ho Bpoko that as a high Tory nnd Con, QUES'l'ION, lho G~nonll GOn'I'nmcllt., nnt! not. by tho P,'O' 8uptll'inten(lont t.hnt ~hol'o wns Romo disMh·nnt.llg(\8 lel'l'lltiTO. Did- tho honornblo member menn to MI', REYNOLDS nskod tho lIon, t.ho Coloninl Tincc8, There Wll~ 110 l'l'orill('.o t.lmt coul(l bo in !.llnt moclo of COnvt'YIlnce, Tho r('II~oning of apply thnt expression to tho chief judge of the Trcasurel', \Vhethcr tho suvings of t.ho yenr 18G5-G .&sked fairl>' to undertnko it., lIS t·ho 1i1'8t, cXI'CllS" t.hu Snperillt~ndont npPcIll'l'd to he. w('l1 I'otmdl'd, Native court, ],{r. Fenton, a mnn who hnd more WCI'C ncltkd on to thc 1'o\,onuo of the noxt yCl1r; attending It in tho const·ruct.ion of ponds "-M for he (MI', 1'fll\'ison) found in tho l'opol'l. of tho brninB in him thal\ the wholo collecti\'o bruins of nlld if so, diel tho '1'l'ell8l1l'e1', in stilting tho oonaidernblo, Honomblo gonth'lllon UllIIC'l(tu.illtetl Sillman Commissionors of TMnmllin, \lUblished that beneh put t~eth('r? Would ho apply thnt rO"cn\lO for lho yen\' 18GG-7, includo ill t·ho ,,-ith tho subjoct might perhnl)ii iilll t.o seo t·hnt Inst yeill', notioing t·ho snecess of tho b'lp by tlte disparaging expression-intendc(1 n t nl1 cyellt! to nlllounts reech'cd tho sn"ings of tho provious there ,,-ns nny difrerenco in t; 10 Innntlgcmont of , Linoolnshil'(,,' which nrrh'cd in Yietoriu. in tho be IO--to his excellent and nceomplished friend, yenr ? Also, whllt wn.s tho nmo\lnt of 811l'ings, if IIllmou 0,1\(1 tl'ont._ lIe could nSBUI'O honol'nblo beginning of 18G6, imUlcdiut.cly nftel' their nrriYnl Mr. lbning, nny, (\UI'ing t.ho Jenr 18GO-7, cnrricc1 forwnrd to mem.bers thnt till' introduct.ion of snlmou wns 0, the 01'1\ WN'O plneocl in the' VictOl'itl' wnr stollmer, fntul'c reycnne? The rCI180n he t.he questi01l much mol'o e:ittco wns of Otn'?o,. nnd Xclson, hnt! "l','cl'lll1y ,-oll-d SUlII1 1'01' illqlth'i,'s should bo 1lI1l(1" by thl' o-Ol-Ol'lIIl1enl, Buid, Let the Go,'enlmcllt give 0,11 opportunity opillion lhnt it would bo illjudicious to apPl'oprillte . the IUtroduetioll of SUhIlOIl. '1'hc f:lUI'(1l'illtl'ndl'lJt "'itlt tho "icll' of uscertnining tho best llI('nllS to for inguiry, and ho would enp;nge to go into the nn~- mOIH'y for tho purposo of introduciug salmon, of Otago de.il'l',-ed cn'l'Y (,I"'(lit 101' the W!lV ho be ndoptc(1 fur introducing silimon illto t!to Colony, pnst history of tho Colony, from the fOlllltlnt.iolt hn dng I'('glll'd to the risk nttending such nn e/I'ort, . 'Kent nbout this mutt('r_ The Provincinl L'oilllcil tho lIlost liwo\ll'l\bJo Fitulltion for ('nrrl'ing out of tho Colony till now, Ho (Mr, C'nl'lrt01I) hn(l 1\11(1 liS (':

The fiduciary duty of the Crown extends to agents of the Crown in their official capacities, as well as to individuals. For purposes of this claim, we regard the Native Land Court as an agency of the Crown by reason of the court's powers and authority beiJig conferred by statute. Notwithstanding the separation of powers in administration, it is an ann of the Crown and of the State. We also regard the New Zealand Historic Places Trust as an agency of the Crown, given its statutory purposes and functions. Our. task has been to inquire into the actions and poliCies of the Crown and its agents in accordance with the tapu of the Treaty not the public mores of.the time. Whakamana te Tiriti e (now is the time to give strength to the Treaty).

References

1 "The Ngai Tahu Report 1991" (Wai 27) 3 W11l (Wellington) pp 414-415 2 See discussion of these principles in the tribunal's report "The Ngai Tahu Report 1991" (Wai 27) 3 W1R (Wellington) Chapter 4 3 Claudia Orange An Illustrated History ofthe Treaty ofWaitangi (Wellington, 1990) p 122 4 Raymond Firth Economics ofthe New Zealand Maori (Wellington, 1959) p 421. For a discussion of reciprOCity and its relevance to treaty obliga­ tions see Martin O'Connor "Honour the Treaty? Property Right and Sym­ bolic Exchange" (Department of EconomiCS Discussion Papers, University of Auckland) no II, March 1991 5 M P K Sorrenson "Treaties in British Colonial Policy: Precedents for Waitangi" in Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts ed W Renwick (Wellington, 1991) p 29 6 Report of the Waitangi Tribunal on the Orakei Claim (Wai 9) (Wellington, 1987) pp 138-139 7 R M Ross "Te Tiriti ofWaitangi: Texts and Translations" The New ZealandJournal Of History, vol 6, no ~, October 1972, pp L~8-139 8 Claudia Orange The Treaty of Waitangi (V('ellington, 1987) chapters 3 & 4 9 The three Signatures are identified as Ngapuhi in Claudia Orange, see n 3, p 135. They are numbers 89, 132 and 147 10 See n 7, pp 265-266, forthe translation from the original Maori cited in the follOWing paragraphs. This was done by T E Young. Native Depart­ ment, 1869. There is a new translation by I H Kawharu in Waitangi: Maori and Pakeha Perspectives of the Treaty ofWaitangi edited by I H Kawharu (Auckland, 1989) pp 319-321. For the English text and the Maori text see the first schedule of the Treaty of Waitangi Act 1975. The Maori text was revised by s4 of the Treaty ofWaitangi Amendment Act 1985. 11 F E Maning Old New Zealand... and a History of the War in the North. .. by a Pakeha Maori (Auckland, 1948) p 217 12 "The Ngai Tahu Report 1991" (Wai 27) 3 W1R (Wellington) pp 412, 421; Ian Wards The Shadow of the Land (Wellington, 1968) p 48 13 Peter Adams Fatal Necessity, British Intervention in New Zealand 1830- 1847 (Auckland, 1977) p 14 and p 238 ff 14 James Rutherford Sir George Grey KCB 1812-1898: A Studyo/Colonial Government (London, 1961) chapter 15

31 Te Roroa 1992 5WfR 165 block. We fmd the expression quaint in the circumstances. Examples of the Crown's detennination to purch~e abound, ranging from expressions that "this section should be purchased at almost any cost" (B6: 161) to "It is not desirable that a high value should be attached to the land in case at any time it is found necessary to acquire any portion of the land under the Public Works Act" (B6:149). Clearly the Crown's overriding concern was to extend its control over Maori land in the neighbourhood of the Waipoua kauri forest (C12: 12). To achieve this it fenced off, by proclamation ih 1917, the areas it wished to acquire. When it was found, however, that these included areas already ac­ quired by Europeans, the proclamation was amended to exclude them. The policy giving rise to the proclamation was not directed to the larid the Crown Wished to acquire for kauri forest but rather to land in Maori ownership. This discriminatory practice persisted until 1972 when the proclama­ tion was fmally lifted. The Crown, from 1917 onwards, perceived the Maori to be a "menace" to the security of the forest (B6:377). Throughout the evidence there is repeated reference to the actions of"Austrians" who were trespasSing on both Maori land and Crown land to steai timber and kauri gum (B6:161 .passim). There is little evidence of Maori removing timber or kauri gum. The sad irony is that it was the land purchased by ~uropeans (W'aipoua 2A2 owned by Eddowes), ex­ cluded from the proclamation, which was leased to the" Austrians", who were the acknowledged "menace" to the kauri forest in ~both Maori and Crown ownership. The discriminatory proclamation wrought a grave injustice upon the Maori who have lived in and conserved the forest for centuries.

HaVing fenced off the Maori~wned,~and in Waipoua No 2 with the proclamation, the Crown enforced survey liens and sent out its native land purchase officers so that doubtl~s the MaOri owners in the end were "hunted up on horseback" (86:227). They then appeared before the Native Land Court. We have previously seen how the Native Land Court in 1876 failed to exercise a judicial function in determining the ownership ofWaipoua No 2 and implementing "the arrangement" of its owners. The role of the native land purchase officc:;r and the judge of the Native Land Court in the Crown's subsequent purchases of the Maori interests in Waipoua No 2, were indistinguishable. In hearing applications where Maori land was being sold to Europeans, the court was almost equally unquestioning, rarely ensuring that the land was being sold for value or that the value of timber had been taken into account in the price. For the Crown to hold out the Native Land Court as a court of law was a deceit. The Crown, in its submissions, argued that the Native Land Court, being an arm of the judiciary, was independent of the State and not

153 5WfRl66 Waitangi Tribunal Reports

an agency of the Crown. We do not accept that argument.s By s Native Land Act 1909 the governor could appoint any person a judg. or commissioner of the court ·without requiring the person to hav any relevant qualifications. The evidence consistently shows a lack c judicial expertise that could reasonably be expected of a judge presic ing in a court oflaw. In reaching this conclusion, we have not assumed the role of a cour with jurisdiction for judicial review. We have examined the evidenc, in relation to the performance by the Crown'ofits obligations unde the Treaty. The Crown failed to extend to Maori the same rights an, privileges as were enjoyed by British subjects generally. By 5' Magistrates' Courts Act 1908, only persons with the qualifications 0 a barrister or solicitor, or who had previously exercised the jurisdic tion "in a competent manner" for a period of five years under the 189 Act, could be appointed a stipendiary magistrate. By failing to requir. in the Native Land Court legislation that only appropriately qualifie, and competent judges and commissioners could be appointed, th Crown was in breach of its obligations under the Treaty. In the course of reviewing the evidence in this claim, we have founl references in official documents and correspondence which suggeE that the Crown's policies and practices were not confmed to Waipom but applied to many other areas in Tai Tokerau. Indeed, they may hav applied nationally. The Land Titles Protection Act 1908 was passel out of the Crown's concern at the number of cases being brought ij the Supreme Court challenging the actions and decisions of Natlv, Land Court judges and other public servants. The preamble to the Ac records that "considerable alarm has -been caused amongst th European landholders at such attacks upon their titles". The Crow. barred any proceedings which could rev~ew the actions of its servant in Maori laud matters:· '\

The Crown's policy in purchasing the M~ori-owned land at Waipou continued unabated until 1928, when preparations commenced fo the consolidation schemes which would enable the Crown "to obtai a sufficient area of Native lands to liquidate the payment for rates mad by the Crown under Section 25/1927". Accordingly, Goffe wa directed to "discontinue all purchases immediately" (B6:92). 4.5. Maori Complaints and Official Inquiries When the Native Department stopped purchasing for the Crown i 1928, it was left with part interests in numerous blocks. All wer administered, however, by the state forest service, and it was not Ion before the Crown resumed its efforts to purchase the balance of th blocks. Hence, in respect ofWaipoua 2B3B I, the native land purchas officer reported that he was having difficulty contacting the tw owners as they were "living in the bush" and it would be "very difficu to get to them in the winter" (B6:56). Three months later he reporte that, although he had contacted these owners (Atareta Morunga'

154 The proclamation fenced off the Maori land, eliminated the market, and after an intensive campaign by Crown employees, enabled the Crown to purchase at outdated valuations. The Native Land Court, clothed in the respectability of a court, fonnalised these acquisitions at the Crown's bidding. Not only has the Crown's policy dispossessed Te Roroa ki Waipoua of its land and heritage; it has also dealt them a grave cultural insult. The nation has Te Roroa to thank for conserving the kauri forest for centuries.

References In 1900, the Maori Lands Administration Act established Maori Land Coun­ cils which subsequently became the Maori Land Boards for each court dis­ trict. In the Native Land Act 1909 the board comprised three people, one of whom was to be a European who was also the president of the board; in the Native Land Act 1931 (577) the board comprised two people, the judge and registrar of the court of that district. It was the board which checked transactions to ensure they were "a fair deal for the landowners" (Fl :27). By its composition and the considerations it was required to take into account, it was the alter ego of the Native Land Court, constituted within its legislation, and we have dealt with its functions, and those of the court, as being synonymous. . 2 AJHR, IB91, G-l, P 21. See also A19:4B 3 OffiCial New Zealand Yearbook (Wellington, 1901) p 241 4 At the inquiry on 6 July 1939, Judge Acheson, after querying whether Moetara was present in court, commented that "Judge Holland had a habit of entering up the name of the person who gave evidence on some previous hearing. It does not follow that because he made the entry the person was there" (B7:210). 5 That judges of the Native Land Court were public servants, rather than members of an independent judiciary, is plain from the preamble to the Land Titles Protection Act 19OB: the actions of Native Land Court judges "and other responsible officers of the public service" were barred from being challenged in the courts. I, 6 As with the other interests purchased at this time, the price paid in 1941 was at the 191B valuation (E4:108; CI2:30) 7 The "particulars of title" showing the transfer by Atareta to her two daughters were forwarded to the registrar of the Tokerau Native Land Court by the undersecretary of native affairs on 26 June 1917 (B6:362). 8 The Crown has acknowledged that the reasons given at the time to justify its refusal to sell to adjoining owners were not in fact justified (Fl: 130- 131). 9 The claimants describe Mr Pumipi in their evidence as being the husband of Kahuru Hone ToL He was her son to whom she transferred her inter­ est in 1959. 10 Crown evidence that this figure comprised $950 for the land and $310 for improvements (fencing) (E4:30-31; E5:197) was incorrect. It was found that the boundary fence between 2AID and 2AIB was in the wrong place and the purchasers paid an additional $407.16 for fencing (E5:20B). 11 Although the Crown's first purchase in Waipoua No 2 was in 1918, it had acquired 95 acres (2B2A) in 1906 in satisfaction of a survey lien (E4:87).

168 Land 'l.'itle.~ Protection. [No. 98. 427

LAND TITLES PROTECTION. :1.908, No. 98.

consolidate certain Enactments of the General Assembly

"'VU.U.u.J'>; to the Protection of Land Titles from Frivolous Attacks in Cases. ~i!-'.lJ'LU• .J.:A~ several actions by Natives calling in question, after a lapse }'re$mble. "least thirty years, certain orders of the Native Land Court made ~he provisions of "The Native Lands Act, 1865," and the Crown '=~L_'. and other instruments of title issued in pursuance thereoL have =~~'recent years been taken in the Supreme Court: .And whereas ~~[sruLd actions have been dismissed and the parties have been cast in ~r,;v·~:"'r.Clt.Cl and expenses: And whereas, through the death or retire­ mi>1nt··~'\-t Judges of the Native Land Court and other responsi'ble officers public service who could give official evidence, the defence of ~~ .actions might be a matter of very great difficulty, if not an im- And whereas considerable alarm has been caused amongst tnerEll1rOJ)e2m landholders at such attacks upon their titles, and it is ~I.edl,ent that reasonable protection should be afforded to the holders titles : IT THEREFORE ENACTED by the General Assembly of New ~~LU in Parliament assembled, and by the authority of the same,

.1: (1.) The Short Title of this Act is " The Land Titles Protection Short Titlf\, 1908." This Act is a consolidation of the enactments mentioned in the Enactment!!! """... ~"uu.t" hereto, and with respect to those enactments the following consolidated shall apply :- : (a.) All Orders in Council and generally all acts of authority which Savings. : originated under any of the said enactments, and are sub­ sisting or in force on the coming into operatien of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions . ~