Thirdly, that the Government of the Queen shall consent and order that

the Queen shall protect the Maoris of New Zealand, and shall give them

her laws in like manner as they are given to the people of England.

But these contracts have been trampled upon by the Government without

exception. The first case of the Government purchasing land was in the

year 1855. They paid a deposit for lands to some tribes without

knowing whether the lands belonged to them, and much land in the

Waikato, Hawke's Bay, and other places was bought in this manner; and

in consequence the Maoris drew a boundary at the Mangatawhiri River,

to separate the ground still held by the Maoris, and set up a head,

namely, Potatau[197]--of the Maori people, who should prevent disputes

between the Natives who sold and those who retained their lands,

always acknowledging the supremacy of the Queen; and this provision

was made over all lands throughout Taranaki, Taupo, and other parts.

In the year 1858 the Government purchased Waitara from Te Teira,

Wiremu Kingi, the paramount chief of that tribe, prohibiting the sale;

but the Government sanctioned the purchase from Te Teira. Wiremu Kingi

drove off the surveyors, and the Government waged war throughout

Taranaki and confiscated the land.

In the year 1863 a proclamation was issued by the Government that all

the Natives adhering to the resolve not to part with their lands

should retire across the boundary-line at Mangatawhiri; they went and

the Government followed them across the boundary and fought them.

Another Proclamation from the Government declared that the Waikato

chiefs adhering to the Queen should aid General Cameron, and that the

Government would protect their persons, their lands, and their

property. Te Wheoro and his tribe aided General Cameron up to the very

last, but their lands (amounting to about 200,000 acres) and property

were confiscated, and a very little portion of the land was returned;

the bulk was sold by the Government to the English, and up to the

present day no compensation has been made. For the property destroyed

the Court ordered compensation to be made; but the Government refused

to comply.

The question of the lands thus seized was laid before the Committee of

Maori Affairs of the House of Parliament in the year 1879, and again

in the years 1880 and 1881, and the unanimous reply was made that the

Government should specially appoint a Commission to investigate that

seizure; but the Government refused to accede to this proposal.

On the seizure of the lands at Taranaki in the year 1863, a law was

made that seven years were to be allowed for the Government to place

settlers on the land, but failing to do so within that time, that the

land should revert to the Maoris. The year 1870 arrived, and the

Government had failed to settle the land, and the land was returned by

the Native Minister, Donald M'Lean, who said that the Government

should purchase the land at 5s. or 7s. per acre; but the Government

did not purchase it.

In the year 1879 the Government began to seize the land without any

pretext, arrested Te Whiti and party in their homes, destroyed their

houses, rooted up their crops, and removed their goods, surveyed the

land, put it into the market, and it was bought by the English, and

very small portions were returned to the Natives. For twelve months

Te Whiti and party were imprisoned and were never tried; they were

then released, but are still under some restraining law of the

Government.

When the lands in the South Island were bought by a Commission from

the Queen the Commission stipulated that, on the Maoris consenting to

the conditions, the villages, the fisheries, and one acre in every ten

should be reserved to the Maoris, and to this the Maoris agreed; but

on the completion of the sale the conditions were and have been

disallowed down to the present time. A Commission was instituted in

the year 1879; but the Government was not pleased to give effect to

its awards.

Respecting the land at Kawhia. Before the establishment of the

Government some Europeans resided at Kawhia; the Maoris allowed their

residence for the purpose of trade, and rent was paid to the Natives

by these Europeans; the Maoris in ignorance signed their names, and,

as they paid for the goods received, were unaware that their names

were obtained for a purpose. On arrival of fresh Europeans the lands

were sold to the new arrivals, and these demanded a Crown grant from

the Government, which was granted, though the Maoris were kept in

ignorance of the transaction: and thus the Government dealt with the

ground and ultimately bought it for themselves, and not until it was

being surveyed were the Maoris aware that their land was alienated.

Nor did the Government enquire of the Maoris whether the claims of the

Europeans were just, and the Maoris condemned the transaction.

The Government submitted a Bill to Parliament to authorise them to put

the land into the market, and the Bill was passed by the Parliament,

the Maori members dissenting, and submitting a letter to the Governor,

asking him to withhold his consent to the Bill, and the letter was

forwarded to the Queen. In the year 1883 the land was thrown into the

market by the Government, and the Kawhia River was buoyed; the Maoris

then gathered together to prevent this, and Tawhiao[198] said to the

Government, through the Native Minister, Mr. Bryce, "Let the staking

of the river be done by him." But Mr. Bryce refused, and all the land

was surveyed by the Government, and soldiers were placed on the land

of the King, and works were pushed forward on the King's land, and the

Government said that they, acting with Rewi and party, should decide

the boundary of the King's land, to which Rewi and party agreed. When

that was settled the Government commenced operations, not confining

themselves to what was agreed upon, at which Rewi severed himself from

any further connection with the operations of the Government, when he

saw that the King party suffered loss; and this is an example of the

conduct of the Government in all their transactions in Maori matters.

The Native Land Court was instituted in the year 1866 by the

Government, and that measure for dealing with Maori lands was adopted

in order to destroy the rights of the Maoris over their own land,

rights secured to them by the Queen in the Treaty of Waitangi.

A fresh rule was thus established, by which the Court had full powers,

its authority was entirely in European hands, and the Maoris were

denied all authority. It was established that ten persons were to be

allowed claims over any section of ground, the majority were to rest

satisfied with no land to live on, and the lands were ultimately

alienated by purchase. Another rule was set up by the Court, that if

the claimants failed to present themselves to the Court the land

should be handed over to others, and thus the lands were sold,

including the lands, the homesteads, and the plantations, and the real

owners of the land were left destitute. When the Maori race asked that

they might be allowed to deal with their own lands by means of their

own committees, the Government declined. In cases where Europeans

purchased land from Maoris who received money for lands not theirs,

the purchase thus made was established to the purchasers. Assessors

were, indeed, appointed for the Court, but they had no power to say

anything with regard to the lands dealt with by the Court. Te Wheoro

was the first Assessor thus summoned in the year 1866; but when he saw

these faults he left it in the year 1872.

The rights of the chiefs over their own lands were disallowed by the

Government, and the positions of the chiefs, in accordance with their

Maori customs, was swept away; for the chiefs had the power to secure

the land for themselves and their tribes, lest the land and the

persons should be lost (by other tribes seizing it) and their rights

were reduced to an equality with ordinary persons, and their words

were allowed no weight in retaining their land or in directing the

affairs of their own tribes: but the Government gave the rights of

ruling to all kinds of persons, and the ruling of these persons,

possessing no tribal rights in the eyes of the race itself, was

authorised, the Government merely regarding their own appointments in

respect to these lands; and thus the Government were able to set aside

and ignore the chiefs.

Maori Assessors were appointed by the Government to rule their own

Maori race; only they had no powers. All powers of establishing and

directing were retained by the Government, and even this is now being

set aside.

Maori representatives were established by the Government, but a

prohibitive rule was made by which the number of members were limited

to four, and, though the Maoris demanded a representation proportionate

to their numbers, this has been refused by the Government up to the

present time; and these members have only nominal power and are unable

to redress the Maori wrongs, and yet the Europeans have only an equal

status with the Maoris. The commission charged by the Government on

the monies paid for Maori lands, whether sold or leased, exceeds 25

per cent.

The payments arising from gold-bearing lands--_i.e._ 10s. per

miner's right, and duties on goods--are taken by the Government, and

none are returned to the Maori race, nor are the Maoris allowed any

voice in directing these taxes; all are taken by the Government for

the benefit of the Europeans, and the Maoris are left out of all

consideration; and the result of all this is that the Government have

taken the lands, the persons, and the rights of the Maori; the Maoris

still lay claim to their rights, and this has been a cause of trouble,

and troubles have also come on other Europeans, as happened at Marunui

and other places throughout the whole Island, all from these acts of

the Government. A Commission sat to investigate these wrongs at

Napier. Te Wheoro, another Maori, and two Europeans sat, but the

Europeans and the Maoris failed to agree, no decision was arrived at,

and the lands were lost, and the Maoris, frightened at such dealings,

retired to a remnant of the land of their ancestors in the King

Country, and yet they are being even now pursued.

Te Wheoro rose in the Parliament of 1880, and, addressing the

Government, asked them to give to the Maoris the office of Minister of

Maori Affairs, then filled by Mr. Bryce, inasmuch as it was a post for

the Maoris, and yet Europeans alone filled the office, though Maori

names were mentioned for the office; and this is a wrong done to the

Maoris, inasmuch as the Queen had given them rights. Mr. Bryce replied

that the office should never belong to the Maoris.

Therefore we and our race have determined, and to us, the representatives

of the tribes of New Zealand, has been assigned the work of crossing

the ocean and of bringing our wrongs to the Queen and people of

England, in whose hands lay the words of life and death, that they

should send and give to the Maori race laws whereby they may live,

like as our friends the Europeans who sent and asked to have a

Parliament of their own, and which was agreed to by the Queen; the

Maoris remaining in ignorance that their friends (the Europeans) had

asked for a Parliament subsequent to the Treaty of Waitangi.

Therefore we pray for our Maori race that our Queen may cherish us,

that she may accede to this our prayer, and grant to us, her Maori

race, these humble requests. And firstly, that you will resolutely

consent to grant a Government to your Maori subjects, to those who are

living on their own lands or those of their ancestors, and within the

limits of Maori territory, that they may have power to make laws

regarding their own lands and race, lest they perish by the ills which

have come upon them; that they may be empowered so to direct

themselves and their own lands lest they be altogether destroyed by

the practices of the Government, unknown and not evident to the

Maoris; and that also the Maoris possessing lands contiguous to the

Europeans should have those lands brought under the direction of the

said Maori Government, for there are many tribes who thus own land,

and which they will not long hold unless thus brought under Maori

Government; and these Maoris are those who are suffering most at the

present time, and they will be unable to save themselves unless some

such means are taken for their preservation.

Secondly, that the Queen and her Government consent to the appointment

of a Maori Commissioner, appointed by the Queen, one of the Maori

race, one adhering to the Queen, an upright man, who shall act as

mediator between the Maori and European races in matters touching the

leasing and selling of the lands of your Maori subjects, who shall

investigate the laws made by the Maori Government, make them feasible,

and to write his opinion to your Governor and to you also for your

confirmation, lest the Maori legislation be at variance with that of

the Government, and lest the Maori should fail to carry out the laws

of the Government respecting them.

Thirdly, that the greater portion of the taxes levied on your Maori

subjects be returned to them, to enable them to carry on their

Government, granted by you to your Maori subjects, in those parts

which are Maori territory.

Fourthly, that the European Judges in the Native Land Court be

superseded, and that your Maori race be then permitted to direct their

own affairs in that Court; that they may be empowered to appoint

their own Judges over their own lands, lest they be all lost by the

present doings of the Court; that they may be able to deal with these

lands in accordance with their own customs, apportioning to each tribe

their share, and, having made all ready for leasing or selling, to

submit all rulings to the Commissioner appointed by you, that he may

look into the whole affair and see that no injurious effects come upon

the Maori, and then he is to submit all to your Governor for

confirmation.

Fifthly, that the lands wrongly obtained by the Government be returned

to us. That all may be in accordance with the concessions made in the

Waitangi Treaty and all other contracts made with your Maori subjects.

That the Queen and her Government also appoint some person from

England--a person independent of the Government of New Zealand--who

shall carefully investigate those wrongs, and if he finds them in

accordance with what we have now presented before you, that then he

should decide whether the lands of your wronged subjects be returned

or a compensation be made for part of it.

We, your Maori race, confidently rely on the Treaty of Waitangi, on

its provisions and force, and we will be led by those provisions in

these matters for which we have now swum the ocean of Kiwa, and we

pray in the presence of the Queen that she will confirm her words

given in that treaty, that it may not be trampled upon by the

Government of New Zealand in anything they may do to annul that treaty.

Let the Queen live! Here we conclude. May God preserve you!

TAWHIAO,

WIREMU TE WHEORO,

PATARA TE TUHI,

TOPIA TUROA,

HORI ROPIHANA.

I hereby certify that the above is a true translation of the petition,

made by me this 15th day of July 1884.

FRED H. SPENCER, Clerk in Holy Orders.

_Sir W. F. D. Jervois to the Right Hon. the Earl of Derby_

GOVERNMENT HOUSE, WELLINGTON, _March 28, 1885_.

MY LORD--With reference to Your Lordship's Despatch, No. 46,

dated the 9th August last, concerning a memorial from Maori chiefs, I

have the honour to transmit herewith a copy of a memorandum from my

Ministers. I also enclose copies of the Acts of the Colonial

Parliament referred to therein.

I regret that I have been unable to send Your Lordship an earlier

reply. The delay, however, has been caused by the fact that the Native

Minister desired to visit the Maori districts before my Government

furnished me with a memorandum on the subject. Full reports of the

several meetings held by him with the Natives will be forwarded by the

next mail.

I beg to refer Your Lordship to my Despatch, No. 9, dated the 1st

March 1884, in which I have stated my own views with regard to the

position of the Native race in this colony.--I have, etc.

WM. F. DRUMMOND JERVOIS.

The Right Hon. the Earl of Derby.

MEMORANDUM FOR HIS EXCELLENCY

Ministers present their respectful compliments to the Governor, and

beg to inform His Excellency that they have considered the memorial

from Maori chiefs referred to in the despatch from Lord Derby, No. 46,

of 9th August 1884.

Ministers are of opinion that they would least embarrass Her Majesty's

Government by referring only to the period since 1865, when Her

Majesty's troops were removed, when for the first time the colony was

left to manage the Natives without interference by the representatives

of Her Majesty in the colony. It is quite certain that since that

period there has been no infraction of the Treaty of Waitangi. As it

is clear that if there was an infraction previously Her Majesty's

Government and Imperial funds would be liable for the same, Ministers

deem it more respectful not to express an opinion on the subject, but

to leave Her Majesty's Advisers in Great Britain to arrive at their

own conclusions.

As to the provisions of section 71 of the Constitution Act (15 and 16

Vict. cap. 72), Ministers would remark that it appears from the very

terms of the section that the Imperial Parliament contemplated that

that section should only be used for a short time and under the then

special circumstances of the colony. The words used in the section

are, "It may be expedient," "Should for the present be maintained." So

far as allowing the laws, customs, and usages of the Natives in all

their relations to and dealings with each other to be maintained,

Ministers would point out that this has been the policy of all the

Native Land Acts. The Courts that have to deal with Native land--and

it is the land that to the Natives seems the most important--decide

according to Native customs or usages (_vide_ "Native Land Courts Act,

1880," section 24; see also sections 5 and 6 of "The Native Lands

Frauds Prevention Act, 1881," and section 6 of "The Native Land Laws

Amendment Act, 1883").

Regarding the proclamation of Native districts the County of Waipa is

practically a Native district, and if the Natives desired such a form

of local government as the Counties Act affords, there would be no

difficulty in granting their request by the Colonial Parliament. What,

however, the petitioners desire is really the setting-up of a

Parliament in certain parts of the North Island which would not be

under the control of the General Assembly of New Zealand. Seeing that

in the Legislative Council and the House of Representatives the

Natives are represented by able chiefs, and that they have practically

no local affairs to look after that cannot be done by their

Committees--local bodies recognised by the Government--Ministers do

not deem it necessary to point out the unreasonableness and absurdity

of such a request.

Ministers have not deemed it necessary to go seriatim through the

allegations of the petition and show their unsubstantiality. A former

Premier, Sir Frederick Whitaker, specially dealt with a petition very

similar to the one now under consideration (see memorandum, 12th

December 1882, addressed to His Excellency the Governor, in Appendix

to the Journals of the House of Representatives, A-6, page 5); and a

former Native Minister, Mr. Bryce, wrote a memorandum referring to the

alleged ill-treatment of the Maoris (see memorandum for His

Excellency, 11th January 1884, A-1, page 11, in Appendix, vol. i.,

1884). The despatch of Your Excellency, No. 9, of the 1st March 1884,

forwarding the memorandum of Mr. Bryce, also combated the statements

of the Maori chiefs who had petitioned.

Ministers do not consider that there is any allegation in this

petition that has not been before the Imperial Government, replied to

by the colony, and dealt with before.

ROBERT STOUT.

WELLINGTON, _March 12, 1885_.

_The Right Hon. the Earl of Derby to Sir W. F. D. Jervois_

DOWNING STREET, _June 23, 1885_.

SIR--I have the honour to acknowledge the receipt of your Despatch,

No. 39, of the 28th of March, transmitting a memorandum from your

Ministers in reference to the memorial of the Maori chiefs, which was

presented on the occasion of the interview which took place at this

office on the 23rd July 1884.

I request that you will inform Tawhiao and the other chiefs who signed

the memorial that, as stated in the letter to them of the 13th August

last, the attention of the Government of New Zealand was called to the

representations which it contains, and that the reply of your

Advisers--a copy of which I request you to transmit to them at the

same time--has been received and considered by Her Majesty's

Government.

The questions to which the memorial relates have also been discussed

in the House of Commons with many expressions of sympathy for the

Maori race, and of belief that their interests and their customs would

be guarded and respected by the Government of New Zealand. The

feeling, at the same time, appeared to be general that while the

Government of the Queen in this country has no longer its former power

and responsibility in regard to the internal affairs of New Zealand,

it should use its good offices with the Colonial Government with the

view of obtaining for the Natives all the consideration which can be

given to them.

I trust that all who sympathise with and wish well to the Maoris will

agree that it is most important for them to understand clearly that

under the present Constitution of New Zealand the government of all

Her Majesty's subjects in the islands is controlled by Ministers

responsible to the General Assembly, in which the Natives are

efficiently represented by persons of their own race, and that it is

no longer possible to advise the Queen to interfere actively in the

administration of Native affairs any more than in connection with

other questions of internal government. I observe, however, with

satisfaction that it is in contemplation to increase the number of the

Native representatives.

Although, therefore, Her Majesty's Government cannot undertake to give

you specific instructions as to the applicability at the present time

of any particular stipulations of a treaty which it no longer rests

with them to carry into effect, they are confident--as I request that

you will intimate to your Ministers--that the Government of New

Zealand will not fail to protect and to promote the welfare of the

Natives by a just administration of the law, and by a generous

consideration of all their reasonable representations. I cannot doubt

that means will be found of maintaining to a sufficient extent the

rights and institutions of the Maoris without injury to those other

great interests which have grown up in the land, and of securing to

them a fair share of that prosperity which has of necessity affected

in many ways the conditions of their existence.--I have, etc.,

DERBY.

Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

_Sir W. F. D. Jervois to Tawhiao_

GOVERNMENT HOUSE, WELLINGTON, _August 27, 1885_.

To Tawhiao.

The Petition which was signed by you, Major Te Wheoro, Patara te Tuhi,

Topia Turoa, and Hori Ropihana, and presented to the Secretary of

State when you were in England was forwarded by him to me, accompanied

by a letter asking for any statements which the Government of New

Zealand might desire to make respecting the matter. I wrote back to

the Secretary of State, and enclosed a memorandum from the Government

of New Zealand. The Secretary of State has again written to me, and

requested me to send to you copies of these letters. I therefore

enclose translations.

You will see from the last letter of the Secretary of State that he

says that the Government of all Her Majesty's subjects in New Zealand,

Maori as well as European, is controlled by Ministers responsible to

the Parliament at Wellington, in which there are Maori representatives,

and that the Government in London cannot interfere in the internal

affairs of the colony.--From your Friend,

WM. F. DRUMMOND JERVOIS.

_The Right Hon. the Earl of Derby to Sir W. F. D. Jervois_

DOWNING STREET, _September 11, 1884_.

SIR--I have the honour to submit to you a copy of a letter

addressed to me by Tawhiao, the Maori King, on his departure for New

Zealand after his recent visit to this country.

You will be so good as to inform Tawhiao that I duly received and that

I appreciate his friendly farewell salutations.--I have, etc.,

DERBY.

Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

_Tawhiao to the Right Hon. the Earl of Derby_

STEAMER "POTOSI," _August 20, 1884_.

FRIEND--Salutations! Abide there with your friends, your

fellow-nobles, your race, your land: I am returning to my people under

the blessing of God.--From

TAWHIAO.

Lord Derby.

_The Right Hon. the Earl of Derby to Sir W. F. D. Jervois_

DOWNING STREET, _February 3, 1885_.

SIR--I have the honour to inform you that I have received

from the chief Hori Ropiha a letter dated the 3rd December, expressing

the satisfaction of his tribe--the Ngatikahungunu--at the principles

laid down on the occasion of the interview between the chiefs and

myself at this office, more especially in regard to uniformity of

legislation.

I request that you will cause Hori Ropiha to be informed that his

statements have given pleasure, and that I do not doubt that any

well-founded complaints on the part of the Maoris will be dealt with

fairly by the Government to which Her Majesty has given over the whole

question.--I have, etc.,

DERBY.

Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

_The Under-Secretary, Native Department, to Hori Ropiha_

WELLINGTON, _April 27, 1885_.

To Hori Ropiha.

GREETING!--Lord Derby has written a despatch to the Governor

of New Zealand acknowledging the receipt of your letter expressing the

satisfaction of Ngatikahungunu at the principles laid down by you and

Lord Derby in England. Lord Derby also says in his despatch that your

statements have given pleasure, and he feels that the Government of

New Zealand will deal fairly with the most important matters affecting

the Maoris which Her Majesty has given to this Government to

administer. Sufficient.--From

T. W. LEWIS.

_Hori Ropiha to the Under-Secretary, Native Department_

WAIPAWA, _July 8, 1885_.

FRIEND--Greeting! Greeting to you, and all the honourable

members of the Parliament of the colony!

You have written to inform me of the receipt by the Government of New

Zealand of a despatch from Lord Derby, in which he acknowledges the

receipt of the letter expressing the satisfaction of the Ngatikahungunu

at the principles laid down by us and Lord Derby in England.

Friend, I did send such a letter to Lord Derby, and the information

contained in Lord Derby's despatch to you is correct--namely, that he

does not doubt that any well-founded complaints on the part of the

Maoris will be dealt with fairly by the Government of New Zealand, to

which Her Majesty has given over the whole question.

Friend, I am greatly pleased at the receipt of your letter. I was

absent at Mohaka, the Wairoa, and the Mahia, where I went to make

known the principles laid down by us and Lord Derby, in order that my

Maori tribes might hear my report of my visit to England. On my return

from England I addressed the Maoris, and the people of my district

were greatly pleased with what I told them. It is true that they have

joined the Blue Ribbon Army,[199] and keep it faithfully.

Friend, continue to carry out a policy that will benefit the

Maoris in accordance with what Lord Derby said--namely, that any

well-founded complaints on the part of the Maoris will be dealt with

fairly by the Government of New Zealand--and justify Her Majesty's

action in giving over the whole question to be dealt fairly with by

the Government.

I know what course of policy would be beneficial to the Maori people

and establish friendly relations. Sufficient.--From your loving Friend,

HORI ROPIHA.

To Mr. Lewis.

_Tawhiao to Sir W. F. D. Jervois_

(Translation)

WHATIWHATIHOE, _September 21, 1885_.

FRIEND--Greeting. I have received your letter of the 27th of August,

with the copies of communications from yourself, your Ministers, and

Her Majesty's Government relative to the subject-matter of the

petition from the Maori people that I and my fellow Native chiefs took

to lay before Her Majesty's Government and the people of England. In

your letter you inform us of one only of the words of Her Majesty's

Government--namely, that the government of all Her Majesty's subjects

in New Zealand is controlled by Ministers responsible to the

Parliament. Your so informing us is well. But you did not also inform

us of another important word of the Government of England with

reference to the Maori people--namely, that you should intimate to

your Government that they should protect and promote the welfare of

the Natives by a generous consideration of all their reasonable

representations. Well, we see that these directions from the

Government of England are no mere random words, but have a bearing

upon the petition, which petition your Ministers said had no

significance, and that England would not interfere. Your

communications and those of the Government of England have been

circulated among the Maori people of this Island.

However, with reference to the statement made by your Ministers that

they do not consider that there is any allegation in this petition

that they have not answered before, I and my fellow Native chiefs

would say, Where are the replies taking exception to those petitions?

And why are they not quoted in connection with this petition for the

consideration of the Native people? And who is it that can say that

the complaints raised in those petitions are similar to those made in

this?

And, further, with reference to the statement that since 1865 England

ceased to interfere in the management of affairs in New Zealand, and

left them to be managed by the Government of New Zealand, it may be

so. But the Maori people are not aware of the reasons that led their

_Pakeha_ friends to apply to have the sole management of affairs

in New Zealand; and the assent thereto of the Queen's Government was

given without considering the Maori people, or making any inquiries of

them. Because the right of governing and the occupation of the Island

by Europeans dates from the Treaty of Waitangi; and it was left to the

chiefs, the _hapus_ of the Native people, and Her Majesty to

carry out the provisions of the Treaty of Waitangi, which became a

covenant on the descendants.

And, further, with reference to the statement made by your Ministers

that "there has been no infraction of the Treaty of Waitangi," we

would ask what portion of the Treaty of Waitangi, what _hapus_,

or what chiefs placed the authority over the Native lands under the

Native Land Court, or gave the Europeans the sole power to deal with

Maori lands in that Court, as stated in the paragraph respecting the

Native Land Court in that petition.

And, further, with reference to the statement respecting the presence

of Native members in the Legislature, the status of those members was

pointed out in the petition: Taking the basis of population, one

Native member is returned for more than twenty thousand persons,

whereas one European member is returned for every five thousand. When,

indeed, have the applications of those members for increased

representation been acceded to by that Parliament? When, indeed, have

the applications of those members to have the grievances of the Native

people redressed been acceded to by that Parliament? When, indeed,

have the applications of those members asking that the Natives should

have the power of administering their own lands been acceded to by

that Parliament? Well, it is seen that the reason why the Government

admitted Natives there (into Parliament) as members was merely in

order that it could be said that Natives dealt with the wrongs now

practised on the Maori people, and in order, too, that such wrongs

should not be looked into, and finally to abolish those members.

And, further, with reference to the statement made by the Minister

that Kawhia is a Native district: Well, if the Government really

considered it to be such, why, then, did they assume to themselves the

right to do certain acts in that district, such as establishing a

military post on Native lands, which was a menace to the Maori people?

When, indeed, have the Government paid any heed to the application of

Tawhiao and the people of that district desiring that Tawhiao should

have the management of matters in that district?

Do you forward a copy of this letter to Her Majesty's Government.

Sufficient.

KING TAWHIAO.

His Excellency the Governor.

_Sir W. F. D. Jervois to the Right Hon. Colonel Stanley_

CHRISTCHURCH, _December 16, 1885_.

SIR--I have the honour to state that I duly forwarded to

Tawhiao, a copy of your Despatch No. 39, of the 23rd June last,

concerning the Maori chiefs' memorial, presented by them to Her

Majesty's Government whilst in England.

I have received from him in reply a letter, a translation of which, in

accordance with the request contained in the last paragraph, I

transmit herewith. I have, on the advice of my Ministers, informed him

that there is nothing to add to the communications that have already

been made.

It is the desire and practice of the Government of this colony to

treat the Native population with the most perfect justice, and, as far

as possible, in the same manner as the other subjects of Her Majesty

in New Zealand. I submit that no good end can be served by prolonging

this correspondence.--I have, etc.,

WM. F. DRUMMOND JERVOIS.

The Right Hon. Colonel Stanley, M.P.

_Sir W. F. D. Jervois to Tawhiao_

CHRISTCHURCH, _December 16, 1885_.

SIR--I have the honour to acknowledge the receipt of your

letter of the 21st September last with reference to your petition to

Her Majesty. I do not think there is anything to add to the

communications that have already been made. I have, as you requested,

forwarded a copy of your letter to Her Majesty's Government.--I have,

etc.,

WM. F. DRUMMOND JERVOIS.

To Tawhiao, etc.

_Tawhiao to Sir W. F. D. Jervois_

WHATIWHATIHOE, _December 22, 1885_.

To the Governor of New Zealand.

GREETING!--I am not quite certain about the copies of the

letters from your Government and Her Majesty's Government that you

forwarded to me on the 27th day of August 1885, in Maori only. I am

very desirous that you should send me copies of the same in English,

which would be right. Sufficient.--From your friend,

KING TAWHIAO.

The Governor, Wellington.

_The Under-Secretary, Native Department, to Tawhiao_

WELLINGTON, _January 29, 1886_.

FRIEND TAWHIAO--Greeting. His Excellency the Governor has forwarded to

Mr. Ballance the letter you wrote to him on the 22nd December, in

which you asked that copies in English of the despatches from Lord

Derby, the Governor, and the Government of the colony might be

supplied to you, and by direction of Mr. Ballance, I forward copies of

those despatches by the mail.--From your friend,

T. W. LEWIS.

Tawhiao, Whatiwhatihoe, _via_ Alexandra, Waikato.

_The Right Hon. Colonel Stanley to Sir W. F. D. Jervois_

DOWNING STREET, _February 2, 1886_.

SIR--I have the honour to acknowledge the receipt of your

Despatch No. 127, of the 16th December, forwarding a translation of a

letter which you had received from Tawhiao in reply to one founded on

my predecessor's Despatch No. 39, of the 23rd June, in connection with

the memorial of the Maori chiefs. I request that your Government will

cause Tawhiao to be informed that I have read his letter in accordance

with his desire.--I have, etc.,

FRED STANLEY.

Governor Sir W. F. D. Jervois, G.C.M.G., G.C.B., etc.

_The Hon. the Native Minister to Tawhiao_

(Translation)

WELLINGTON, _May 6, 1886_.

FRIEND TAWHIAO--I have been requested by His Excellency the

Governor to transmit for your information copy of a despatch he has

received from the Right Hon. the Secretary of State for the Colonies

in reference to a letter from yourself. Enough.--From your loving

friend,

JOHN BALLANCE.

Enclosure.--Despatch No. 7, of the 2nd February 1886.

COPY OF RESOLUTIONS

The Resolutions herein written were confirmed by the chiefs and

_hapus_ assembled at Whatiwhatihoe on this 4th day of April, in

the year 1886.

1. That the Treaty of Waitangi shall continue in force, by which the

authority (_mana_) of the chiefs of the Maori people was assured

to them, and which also confirms and guarantees Maori people the

full, exclusive, and undisturbed possession and control of their

lands, and declares that the Maori people shall be maintained in their

rights.

2. That the powers conferred by the Act of the year 1852 should be

maintained--viz. that a council or councils should be set up, and

invested with power and full authority, and that it shall be lawful

for Her Majesty to authorise such councils.

3. That the Maori people of Ao-tea-roa (New Zealand) shall act

together under the law above mentioned.

4. That the Maori committees, authorised by the laws above referred

to, shall be zealous in the performance of their duties.

5. That no wrong proceedings or operations of the Government towards

the Maori people shall be sanctioned.

6. That the Native Land Courts Act should be repealed, and that it be

left to the Maoris themselves to adjudicate on their own lands.

7. That this _runanga_ (council) shall persist in its efforts to

have the directions given by the Government of the Queen to the

Government of New Zealand carried out--viz. that the rights and

interests of the Maori people shall be guarded and respected. (This

resolution was unanimously carried by the _runanga_: "Although

the Government of England has nothing to do with the affairs of New

Zealand, still the Government of the Queen will instruct the

Government of New Zealand to devise some measures whereby justice may

be done to the Maori people and their interests promoted, and that the

Governor should be questioned concerning these instructions from

England.")

8. That the chiefs attending this meeting be deputed to put the

question to the Governor.

9. That each tribe should subscribe money for the purchase of a press

to print for circulation reports of what are done and said by the

Maori people.

10. That power be given to each committee to deal with lands in its

own district.

These are the Resolutions that were carried.

King Tawhiao's reply in reference to the Resolutions was: "I thank you

for an assent to the resolutions. I thank you, every one of you, for

your discussions upon those resolutions which have been formed by you

in accordance with your own wishes. I have carefully watched your

discussions. There was but one tendency of all your discussions, which

corresponds exactly with the object I had in view in inviting you to

this meeting. Be zealous in lifting up and in sustaining (measures

for the benefit) of both these islands. Hearken ye! The views held by

the English people in England are precisely the same as those held by

the Maori people in New Zealand."

_The Hon. the Native Minister to Tawhiao_

(Translation)

AUCKLAND, _April 17, 1886_.

FRIEND--I have the honour to enclose you the reply of the

Governor to the resolutions presented by the deputation (sent by you)

to His Excellency on the 9th instant. There is one point in the

resolutions on which I desire to offer an explanation. In the

translation of Lord Derby's despatch made in the Native Department in

Wellington some of the terms are incorrectly rendered. A correct

translation has been made and handed to Major Te Wheoro. The despatch

itself is in your possession, and there can be no doubt of its

meaning, which is fully explained in the memorandum of His

Excellency.--From your friend,

J. BALLANCE.

To Tawhiao.

_Memorandum from Sir W. F. D. Jervois to the Hon. the Minister for

Native Affairs_

The enclosed replies to certain questions submitted to me in a

memorandum from several Maori chiefs who waited upon me on the 9th

instant with a view of laying before me resolutions passed at a Native

meeting previously held at Whatiwhatihoe are transmitted to the

Minister for Native Affairs for communication to the chiefs concerned.

In forwarding the paper to the chiefs, I request that you will inform

them that I was greatly pleased at the loyal sentiments expressed by

them at their interview with me towards Her Most Gracious Majesty the

Queen, as well as the confidence they exhibited towards myself as her

representative. I also beg that you will convey to Tawhiao, and all

the chiefs concerned, how much I rejoice at the cordial feeling they

exhibit towards the Government of New Zealand.

W. F. DRUMMOND JERVOIS.

GOVERNMENT HOUSE, AUCKLAND, _April 14, 1886_.

MEMORANDUM RELATING TO RESOLUTIONS PASSED AT A NATIVE MEETING HELD

AT WHATIWHATIHOE ON THE 4TH APRIL 1886.

Referring to the Resolutions in the order submitted in a paper laid

before His Excellency the Governor by a deputation of Maori chiefs on

the 9th April: 1. The Treaty of Waitangi vested the _mana_ in Her

Majesty the Queen, and secures to the Natives their land. That treaty,

in its essential elements, has been faithfully kept by the colony. A

modification was made in it by which the Natives obtained the right of

selling their lands to persons outside the Government, whereas under

the treaty the Government had the sole right of purchasing Native

lands. This modification, the only one made in the treaty, was,

however, introduced at the request of the Maoris themselves. The

rights of the Maori people have been carefully preserved.

2. This appears to refer to section 71 of the Constitution Act, where

reference is made to Native councils. It must be observed, however,

that the section is not mandatory, as will be seen from the clause

itself, and from such terms as, "it may be expedient," and "should for

the present be maintained." Local self-government has been extended to

the Native people in the form of Committees under the Act of 1883.

These Committees have power to ascertain titles to Native lands, and

to hear and decide civil cases by agreement, and, in fact, may be said

to be Courts of Arbitration. Their usefulness is being proved, and a

large majority of the Native people appreciate them and are using

them. It has been found by experience, however, with regard to titles

to land, that there is often great jealousy of the committees, and

that the Natives prefer to have the land adjudicated on by the Land

Courts. (This remark applies also to Resolution 6.) If any other form

of Maori council than that which now exists is desired under the

clause of the Constitution Act referred to, it can only be obtained by

Act of Parliament of New Zealand.

No observations are necessary to Resolutions 3, 4, 5, 8, and 9.

7. This Resolution apparently refers to Lord Derby's despatch of the

23rd June 1885, but does not convey a correct impression of the terms

of that document. No directions are contained in the despatch. Lord

Derby expressly says that "under the present Constitution of New

Zealand the government of all Her Majesty's subjects in the islands is

controlled by Ministers responsible to the General Assembly, in which

the Natives are efficiently represented by persons of their own race,

and that it is no longer possible to advise the Queen to interfere

actively in the administration of Native affairs, any more than in

connection with other questions of internal government." The

resolution states that there is an "instruction" contained in the

despatch; but there is none. On the contrary, Lord Derby expressly

recognises the right of the New Zealand Government to deal with the

internal affairs of the colony without interference. The words of Lord

Derby, where he refers to the Native people, are as follows: "It (the

Imperial Government) should use its good offices with the Colonial

Government with the view of obtaining for the Natives all the

consideration which can be given to them." The particular request that

Lord Derby makes, and it is only in the nature of a request, is "that

the Government of New Zealand will not fail to protect and to promote

the welfare of the Natives by a just administration of the law, and by

a generous consideration of all their reasonable representations." He

adds, "I cannot doubt that means will be found of maintaining to a

sufficient extent the rights and institutions of the Maoris without

injury to those other great interests which have grown up in the land,

and of securing to them a fair share of that prosperity which has of

necessity affected in many ways the conditions of their existence."

The policy advocated by Lord Derby has been and is being carried out.

A proof of this is to be found in the fact that an overwhelming

majority of the Natives are satisfied with the administration of their

affairs by the Government of New Zealand.

JOHN JERVOIS, Private Secretary.

Signed by order of His Excellency the Governor. Government House,

Auckland, 14th April 1886.

In the Court of Appeal of New Zealand.

TAMIHANA KOROKAI AND OTHERS _v._ THE SOLICITOR-GENERAL

1912.

July 23, 24, 25.

Oct. 7.

C.A.

Coram.

Stout, C.-J.

Williams, J.

Edwards, J.

Cooper, J.

Chapman, J.

Skerrett, K.C., Morison and Fell for the plaintiffs.

Solicitor-General (Salmond) and Ostler for the defendant.

STOUT, C.-J.--This is a special case stated pursuant to Rule 245 of

our Code of Civil Procedure. Neither party, however, asks that all the

questions framed in the case should be answered. Indeed both ask that

some of the questions should not be answered. The point in dispute

between the parties is a narrow one. The plaintiff contends that he

has a statutory right to go to the Native Land Court claiming under

the Native Land Act a freehold title. The Solicitor-General contends

that if he, as Solicitor-General, says the land, that is the bed of

Lake Rotorua, is Crown land that concludes the matter, and the Native

Land Court cannot proceed to make any inquiries as to whether the land

is native customary land. That is the matter in contention, and it

appears to me that it is the only question that this Court has at

present to decide.

It may be necessary to refer very shortly as to how the question has

arisen. In 1835 there were many English people settled in the most

northerly part of New Zealand. English Church Missionaries had been

there for some years, they landed first in 1814; and there were

traders and whalers and others that had made New Zealand their home.

One called Charles Baron de Thierry, in Marquesas, claimed that he was

sovereign chief of New Zealand. He so informed Mr. James Busby, who

had been appointed British Resident in New Zealand, and Mr. Busby

thereupon took steps to deny any such sovereignty. He and other

English residents saw the Native chiefs and they formed what was

called a Confederation. The thirty-five head chiefs or heads of tribes

in the most northern parts of New Zealand, that is all the country

lying north of the Firth of Thames, joined in a declaration that

New Zealand was an independent state under the name of the "United

Tribes of New Zealand." Mr. Busby sent a copy of this declaration to

the Under-Secretary of State in London, and Lord Glenelg, the

Secretary of State for the Colonies, wrote to the Governor of New

South Wales regarding the declaration. The Governor was directed to

inform the chiefs "With reference to the desire which the chiefs have

expressed on this occasion to maintain a good understanding with His

Majesty's subjects, it will be proper that they should be assured in

His Majesty's name that he will not fail to avail himself of every

opportunity of showing his goodwill and of affording to those chiefs

such support and protection as may be consistent with a due regard to

the just rights of others, and to the interests of His Majesty's

subjects."

Meantime the eligibility of New Zealand as a colony was being

discussed both in New South Wales and in England, and ultimately in

1840 Captain Hobson, R.N., was despatched to New Zealand with two

commissions, one as British Consul, and the other as Lieutenant-Governor.

He reached the Bay of Islands on the 29th of January 1840, and on the

5th and 6th of February the Treaty of Waitangi was signed by many

chiefs, then assembled at Waitangi in the Bay of Islands. The treaty

states, _inter alia_: "Her Majesty, therefore, being desirous to

establish a settled form of civil government with a view to avert the

evil consequences which must result from the absence of the necessary

laws and institutions alike to the native population and to her

subjects, has been graciously pleased to empower and authorise me,

William Hobson, a Captain in Her Majesty's Royal Navy, Consul and

Lieutenant-Governor of such parts of New Zealand as may be or

hereafter shall be ceded to Her Majesty to invite the confederated and

independent chiefs of New Zealand to concur in the following articles

and conditions."

Then follow three articles. The first article deals with the cession.

It is as follows: "The chiefs of the Confederation of the United

Tribes of New Zealand, and the separate and independent chiefs who

have not become members of the confederation, cede to Her Majesty the

Queen of England, absolutely and without reservation, all the rights

and powers of sovereignty which the said confederation or individual

chiefs respectively exercise or possess or may be supposed to exercise

or possess over their respective territories as the sole sovereigns

thereof."

The second and the third articles are as follows: "Her Majesty the

Queen of England confirms and guarantees to the chiefs and tribes of

New Zealand and to the respective families and individuals thereof,

the full, exclusive, and undisturbed possession of their lands and

estates, forests, and fisheries, and other properties which they may

collectively or individually possess, so long as it is their wish and

desire to retain the same in their possession: but the chiefs of the

united tribes and the individual chiefs yield to Her Majesty the

exclusive right of pre-emption over such lands as the proprietors

thereof may be disposed to alienate, at such prices as may be agreed

upon between the respective proprietors and persons appointed by Her

Majesty to treat with them in that behalf." The third is as follows:

"(3) In consideration thereof, Her Majesty the Queen of England

extends to the natives of New Zealand her royal protection, and

imparts to them all the rights and privileges of British subjects."

Copies of the treaty were taken to various parts of both islands, and

the chiefs throughout New Zealand signed it, and to the present day

the treaty is regarded as their Magna Charta. The Lieutenant-Governor

on the 21st May 1840 issued a proclamation, proclaiming and declaring

that after the date of the treaty the full sovereignty of the North

Island of New Zealand vested in Her Majesty, Queen Victoria, her heirs

and successors for ever.

A further proclamation was issued on the same day proclaiming and

declaring that all the Islands of New Zealand vested in Her Majesty,

that is, including all country between 34° 30´ north to 47° 10´ south

latitude and between 166° 5´ to 179° east longitude. A mistake was

made in this proclamation in that it proclaimed from 34° 30´ north

instead of as was intended 34° 30´ south. The ground of the

proclamation over the South Island was that of discovery. Since then

it has been recognised that the lands in the islands not sold by the

natives belonged to the natives. All the old authorities are agreed

that for every part of land there was a native owner. Two authorities

may be cited. Bishop Selwyn said as follows: "Three points then seem

to be clear on this subject: (1) That there was originally a distinct

owner for every habitable spot in the Northern Island: (2) That these

claims have been complicated by the obvious causes of inheritance and

marriage without forms of conveyance or bequest: (3) That the rights

of ownership whether in one or many joint proprietors were not

alienable without the consent of the tribe."

The late Sir William Martin, formerly Chief-Justice of New Zealand,

said: "So far as yet appears the whole surface of the islands, or as

much of it as is of any value to man, has been appropriated by the

natives, and, with the exception of the part they have sold, is held

by them as property. Nowhere was any piece of land discovered or heard

of (by the commissioners) which was not owned by some person or set of

persons.... There might be several conflicting claimants of the same

land: but however the natives might be divided amongst themselves as

to the validity of any one of the several claims, still no man doubted

that there was in every case a right of property subsisting in some

one of the claimants. In this Northern Island at least it may now be

regarded as absolutely certain that, with the exception of lands

already purchased from the Natives, there is not an acre of land

available for purposes of colonisation, but has an owner amongst the

Natives according to their own customs."

The Governor and the Legislature of New Zealand accepted this

position, and numerous ordinances and acts of Parliament have been

passed to enable the Maoris to transmute their customary title into

freehold. The position all along assumed has been that the lands are

vested in the Crown, and until the Crown issues a freehold title the

customary titles cannot be recognised; but that the Crown will give to

all who prove that the land was theirs a freehold title. The Crown has

not assumed that land could be taken or kept by the Crown from the

Natives, unless the natives ceded their rights to the Crown. Thousands

of purchases in both islands have been made by the Crown, and

thousands of deeds of cession are in existence. The reason why the

Crown did not recognise any title in the land till a grant from the

Crown had issued is dealt with in the classic judgment of the late Mr.

Justice H. S. Chapman, delivered in 1847 in the case of Reg. _v._

Symonds, and in the judgment of the then Chief-Justice Sir William

Martin, who agreed with the judgment of Mr. Justice Chapman. After

their judgments, the Imperial Parliament in the New Zealand

Constitution Act (15 and 16 Vict. c. 72, sec. 73) recognised the

native title. Section 73 of that Act is as follows: "It shall not be

lawful for any person other than Her Majesty, her heirs and

successors, to purchase or in any wise acquire or accept from the

aboriginal Natives land of or belonging to, or used or occupied by

them in common as tribes or communities, or to accept any release or

extinguishment of the rights of such aboriginal Natives in any such

land as aforesaid: and no conveyance or transfer, or agreement for the

conveyance or transfer of any such land, either in perpetuity or for

any term or period, either absolutely or conditionally, and either in

property or by way of lease or occupancy, and no such release or

extinguishment as aforesaid, shall be of any validity or effect,

unless the same be made to, or entered into with and accepted by Her

Majesty, her heirs or successors. Provided always that it shall be

lawful for Her Majesty, her heirs and successors, by instructions

under the signet and royal sign manual, or signified through one of

Her Majesty's Principal Secretaries of State to delegate her

powers of accepting such conveyances or agreements, releases, or

relinquishments, to the Governor of New Zealand, or the superintendent

of any province within the limits of such colony, and to prescribe or

regulate the terms of such conveyances or agreements, releases or

extinguishments shall be accepted."

That the Crown in New Zealand recognised that it could not treat the

Native land--that is, the land over which the Natives had not given up

their rights of cession--as Crown in the fullest sense is plain from

various things done: (1) In 1862 the first Act to provide for the

ascertainment of the ownership of Native lands, and for granting

certificates of title therein, and for regulating the disposal of

Native lands was passed. The preamble is as follows: "Whereas by the

Treaty of Waitangi entered into by and between Her Majesty and the

chiefs of New Zealand, it was among other things declared that Her

Majesty confirmed and guaranteed to the chiefs and tribes of New

Zealand and the respective families and individuals thereof the full,

exclusive, and undisturbed possession of their lands and estates,

which they collectively or individually held so long as it should be

their desire to retain the same: And it was further declared that the

chiefs yielded to Her Majesty the exclusive right of pre-emption over

such lands as the proprietors thereof might be disposed to alienate:

And whereas it would greatly promote the peaceful settlement of the

colony and the advancement and the civilisation of the Natives if

their rights to land were ascertained, defined, and declared, and if

the ownership of such lands when so ascertained, defined, and declared

were assimilated as nearly as possible to the ownership of land

according to British law: And whereas with a view to the foregoing

objects, Her Majesty may be pleased to waive in favour of the Natives

so much of the said Treaty of Waitangi as reserves to Her Majesty the

right of pre-emption of their lands, and to establish Courts and to

make other provision for ascertaining and defining the rights of the

Natives to their lands, and for otherwise giving effect to the

provisions of the Act: And it is expedient that the General Assembly

of New Zealand should facilitate the said objects by enacting such

provisions as are hereinafter contained."

(2) When the natives committed rebellion or were guilty of

insurrection, a special Act was passed allowing the Governor in

Council to take their lands. See _inter alia_ the New Zealand

Settlements Act, 1863. A few of the sections may be cited: "2.

Whenever the Governor in Council shall be satisfied that any Native

tribe or section of a tribe or any considerable number thereof has

since the first day of January 1863 been engaged in rebellion against

Her Majesty's authority, it shall be lawful for the Governor in

Council to declare that the district within which any land being the

property or being in the possession of such tribe or section or

considerable number thereof shall be situate, shall be a district

within the provisions of this Act, and the boundaries of such district

in like manner to define and vary as he shall think fit."

"3. It shall be lawful for the Governor in Council from time to time

to set apart within any such district eligible sites for settlements

for colonisation, and the boundaries of such settlements to define and

vary."

"4. For the purposes of such settlements the Governor in Council may

from time to time reserve or take any land within such district, and

such land shall be deemed to be Crown land, freed and discharged from

all title interest, or claim of any person whomsoever as soon as the

Governor in Council shall have declared that such land is required for

the purposes of this Act, and is subject to the provisions thereof."

Section 5 provided for compensation to persons whose land has been

taken, provided that they had not been in rebellion.

(3) Before Native land was treated as Crown land, open for sale and

settlement, proclamations were generally made so declaring the land

open. See, for example, section 6 of the Immigration and Public Works

Act, 1873, and section 247 of the Land Act, 1885.

It is not necessary to point out that if the Crown in New Zealand had

not conserved the Native rights and carried out the treaty a gross

wrong would have been perpetrated. Since the recognition of the Native

rights so often made, there may have been interference by legislation

with Native land, both before and after the ascertainment of title.

If, however, there were such interferences, they have been based on

the theory of eminent domain. There have been statutes passed

providing how Native lands may be leased, but a similar kind of

interference has been witnessed in the United Kingdom in the case of

the Irish Land Acts and the Scottish Crofters' Statutes. Such

interferences did not destroy the title of Natives. Native lands and

freehold lands belonging to persons of the white race have also been

taken under such a theory when it appeared it was for the interest of

the State to do so. In such cases compensation has been awarded. To

interfere with Native lands, merely because they are Native lands, and

without compensation, would of course be such an act of spoliation and

tyranny that this Court ought not to assume it to be possible in any

civilised community.

The decision of _Wi Parata v. Bishop of Wellington_, 3 J.R.,

N.S., S.C. 72, does not derogate from that position. It only

emphasised the decision in _Reg. v. Symonds_, that the Supreme

Court could take no cognisance of treaty rights not embodied in a

statute, and that Native Customary Title was a kind of tenure that the

Court could not deal with. In the case of _Tamaki v. Baker_

(1901), A.C. 561, the Judicial Committee of the Privy Council

recognised, however, that the Natives had rights under our statute law

to their customary lands.

The Native Land Act, 1909, has various sections dealing with the

customary land of the Maoris (sections 84, 85, 86, and 87). What was

the need of such sections if a declaration by a law officer of the

Crown was all that was necessary to say that the land claimed as

Customary Native Land was Crown Land? Section 88 is significant in

this connection. It states "(1) for the purpose of recovering

possession of customary land from any person in wrongful occupation

thereof, and for the purpose of preventing any trespass or other

injury thereto, or of recovering damages for any such trespass or

injury, all such land shall be deemed to be Crown Lands within the

meaning of the Land Act, 1908. (2) No action or other proceeding,

other than a proceeding by or on behalf of the Crown under the last

preceding subsection, shall be brought in any Court by any person for

the recovery of the possession of customary land, or for damages or an

injunction in respect of any trespass, or injury to such land."

Sections 90 and 91 show that the customary titles are recognised:

section 90 reads: "The Native Land Court shall have exclusive

jurisdiction to investigate the title to customary land, and to

determine the relative interests of the owners thereof." Section 91 is

as follows: "Every title to and interest in customary land shall be

determined according to the ancient custom and usage of the Maori

people, so far as the same can be ascertained." Section 92 shows the

jurisdiction of the Native Land Court. Formerly there was something

more required than an order of a Native Land Court to make an

effective title. At one time His Excellency the Governor had to sign a

Crown grant and at another time a certificate of title.

I am of opinion that the Native Land Act recognises that the Natives

have a right to their customary titles. There are in my opinion only

three things that can prevent the Native Land Court entering on an

enquiry as to such customary title.

(1) A proclamation of the Governor under a statute, such as has been

provided in many Acts, and is so provided in section 85 of the Native

Land Act, 1909.

(2) A prohibition by the Governor under section 100 of the Native Land

Act, 1909.

(3) Proof that the land has been ceded by the true owners or that a

Crown grant has been issued.

I know of no statutory authority that the Attorney-General as

Attorney-General or the Solicitor-General as Solicitor-General has to

declare that the land is Crown land. The Attorney-General and the

Solicitor-General are both high officers of State. They are legal

officers, and they can appear as solicitors or counsel for the Crown,

but there their functions and powers end. Their statement as to what

is Crown property unless made in accordance with some statutory power,

is of no avail. If in an action they put in a plea to that effect, it

would have to be proved like any other pleading of a party to the

action. The Solicitor-General has failed to cite any authority that

the mere statement of the legal adviser of the Crown, or the Crown's

Attorney or Solicitor-General, was to be taken as a true averment

without proof.

What the customary title to the bed of Lake Rotorua may be must be

considered and determined by the only Court in New Zealand that has

jurisdiction to deal with Native titles--the Native Land Court. At

common law there may be an ownership of the bed of navigable rivers or

lakes that are non-tidal. See Kent's _Commentaries_, vol. iii. p.

427, note (_d_). The case of _Mueller v. Taupiri Coal Mines,

Ltd._, 20 N.Z.L.R. 89, turned on the effect of a grant under the

Land Acts.

I am of opinion that it is not necessary specifically to answer the

questions put, but only to say that the plaintiff and his people have

a right to go to the Native Land Court to have their title

investigated, and that the Native Land Court can only be prevented

from performing its statutory duty, first, under the Native Land Act,

secondly, on proof in that Court that the lands are Crown Lands freed

from the customary title of the Natives, or, thirdly that there is a

Crown title to the bed of the lake.

WILLIAMS, J.--The contention of the Solicitor-General is that in all

cases where land is claimed by natives to be held by them under their

customs and usages, and they seek to have their titles ascertained by

the Native Land Court, and a title in fee simple granted to them, the

Solicitor-General, by virtue of the prerogative right of the Crown,

and apart from any statutory authority, could at any time step in and

prevent proceedings being taken or continued. The arguments in support

of this contention are that when New Zealand was annexed to Great

Britain all the land in New Zealand became vested in the Crown, by

virtue of its prerogative; that the Treaty of Waitangi is binding only

upon the honour of the Crown, and can be disregarded at the discretion

of the Crown; and that, although there may be a statutory recognition

of the Native title, there is no such statutory recognition as would

operate as against the Crown. Even if these arguments were sound it by

no means follows that the contention of the Solicitor-General can be

supported.... There is nothing in the Governor's commission or in the

Royal instructions which expressly authorises him to interfere on

behalf of the Crown to prevent the exercise of rights given to natives

by the statute law of the Dominion. Has he then, by virtue of his

commission, an implied power so to interfere?... There is a special

reason why the power now claimed should not be implied. The power now

claimed is by an act of state to disregard rights given by statutes

which have been passed to carry out treaty obligations binding upon

the honour of the Crown. If the Crown has this power, it is exercised

on the advice of the responsible Minister of the Crown. Whether it

should be so exercised or not is a matter affecting the honour of the

Crown, not merely as the Sovereign of this Dominion, but as the

Sovereign of the British Empire. It was with the Sovereign of the

British Empire that the Treaty of Waitangi was entered into. Whether

Imperial obligations should or should not be observed is a matter of

Imperial concern for the responsible advisers of the Crown in Great

Britain to decide upon and not for the advisers of the Governor here,

unless the power of deciding has been expressly delegated to the

Governor. Even if the power had been so delegated the Court would

properly require some evidence beyond the mere statement of the

Attorney- or Solicitor-General that the authority of the Crown was

being exercised.... I agree with the conclusion arrived at by His

Honour, that rights given to natives by statute to have their

customary titles determined can only be divested in the manner

prescribed by statute. The rights given to natives by sections 90 to

93 inclusive of "The Native Land Act, 1909," to have a legal estate in

fee simple in possession vested in the persons found to be entitled

are rights expressly given against the Crown. If these sections do not

bind the Crown they are meaningless and inoperative. The Crown is a

party to the statute. It is difficult to see how, when rights which

expressly affect pre-existing rights of the Crown are created by

statute, the Crown upon the passing of the statute can disregard the

rights so created, and exercise its pre-existing rights as if the

statute had not been passed.

EDWARDS, J.--In support of his contention that the bed of the lake

cannot be the subject of a Native title under Maori customs and

usages, the Solicitor-General relies upon the inherent improbability

that there was any intention, either by the Treaty of Waitangi or by

the statutes relating to native lands, to recognise any such right. To

hold that there is such a right would be, the Solicitor-General

contends, to destroy the right of navigation in all non-tidal waters

to the great detriment of the public. Such considerations might well

have induced those responsible for the Treaty of Waitangi to have so

framed that document as to preclude any claim by natives to the

exclusive possession of land covered by navigable non-tidal waters. It

may even be suggested that the words of the treaty, which guarantee to

the Maoris "the full, exclusive, and undisturbed possession of their

lands and estates, forests, fisheries, and other properties," were

intended to reserve to the natives merely the right to fish in

non-tidal waters, without recognising in them any property in the land

covered by such waters. It is quite possible--indeed not

improbable--that there never was any Maori custom or usage which

recognised any greater right in land covered by navigable non-tidal

waters than this. That is a question which neither the Supreme Court

nor this Court can determine. If there never was any such custom or

usage prior to the Treaty of Waitangi, then the Crown will get the

advantage of that when that question has been determined by the Native

Land Court, or in the last resort by the Judicial Committee of the

Privy Council. But if there was such a custom or usage, the treaty, so

far as it is effective, is sufficient to preserve it. The treaty, like

every other instrument, must be construed in accordance with the plain

legal significance of the words used, and the Courts cannot speculate

as to whether or not those words were used in another sense not

apparent upon the face of the instrument, or necessarily to be

inferred from the subject with reference to which they are used. A

lake, in contemplation of the English law, is merely land covered by

water, and will pass by the description of land. _Bristow v. Cormican_

(3 A.C. 641); _Johnston v. O'Neill_ (1911, A.C. 552). Whatever rights

were conserved to the Maoris by the Treaty of Waitangi were fully

recognised by "The Native Lands Act, 1862," which recited the treaty,

and was enacted with the declared object of giving effect to it.... In

my opinion it is clear that if the Crown desires to set up its title,

as a bar to the investigation by the Native Land Court in its ordinary

jurisdiction of claims by natives, it must either be prepared to prove

its title, or it must be able to rely upon a proclamation in

accordance with the terms of the 85th section of "The Native Land Act,

1909."

COOPER, J.--I have had the advantage of reading and considering the

judgment of His Honour, the Chief Justice, and, upon substantially the

same grounds as are expressed by His Honour in that judgment, I have

arrived at the same conclusion.

I have very little to add.

"The Land Act, 1908," contains the statutory provisions regulating the

administration of Crown lands in New Zealand. In respect of Native

lands, section 2 brings within the category of Crown lands only those

"Native lands which have been ceded to His Majesty by the Natives on

behalf of His Majesty, or otherwise acquired in freehold from the

Natives on behalf of His Majesty, or have become vested in His Majesty

by right of his prerogative."

Customary lands owned by natives, which have not been ceded to His

Majesty or acquired from the native owners on behalf of His Majesty,

cannot in my opinion be said to be land vested in His Majesty by right

of his prerogative. It is true that, technically, the legal estate is

in His Majesty, but this legal estate is held subject to the right of

the natives, recognised by the Crown to the possession and ownership

of the customary lands, which they have not ceded to the King, and

which His Majesty has not acquired from them.

Section 338 of the Act draws a clear distinction between Native lands

and Crown lands. Under subsection (1) of that section, where the

Governor is satisfied that Native lands have been acquired by the

Crown, he shall by proclamation declare such lands to be Crown lands,

and under subsection (2), when such lands have been so acquired, he

may give effect to any stipulation in the instrument of sale or

transfer to His Majesty for the reservation to the natives of any part

of such lands, and may reserve or grant such portions in manner

required by the natives.

Section 88 of "The Native Land Act, 1909," which has been referred to

by His Honour also, recognises that these lands are not "Crown lands."

They are only deemed to be Crown lands for the one purpose, namely,

that if any person is in possession of or trespassing upon, or

injuring the lands against the interest of the Native owners, then,

for the purpose of protecting the Native owners the Crown may under

the Land Act take proceedings against such wrongdoers. Even this

provision is a guarded one, for subsection (3) of that section

expressly provides that nothing in it contained shall take away or

affect any jurisdiction conferred upon the Native Land Court.

CHAPMAN, J.--I agree with the judgments which have been read. It has

been argued that the Treaty of Waitangi was an international treaty

entered into with chiefs having the sovereignty. The contrary opinion

was pronounced by the Supreme Court in _Wi Parata v. The Bishop of

Wellington_ (3 N.Z. Jur. N.S. 72). The terms employed and the mode

of execution of the treaty leave it at least an open question whether

it was so regarded at the time. It professes to be made with certain

federated chiefs and certain chiefs who are not federated, but it does

not state over what territories they exercised authority, though the

text of the treaty seems to suggest that it was contemplated that it

should be made with several chiefs who might possibly be regarded, and

were provisionally and hypothetically treated as sovereigns of their

respective territories. Later it became a matter of general knowledge,

derived, I presume, from maps prepared pursuant to section 21 of "The

Native Land Act, 1873," that there are eighteen or twenty tribes in

New Zealand. If that be so the numerous signatories of the Treaty of

Waitangi can hardly be described as sovereign chiefs. I agree that if

they had been explicitly so declared by Her Majesty's government, or

had been so treated in a course of political transactions that would

have been sufficient to make them so, and that their numbers and their

individual unimportance would not have rendered this impossible,

provided that in each case there was a sovereign to a territory.

_Hemchand Devchand v. Azam Sakaral Chhotamlal_ (1906, A.C. 212).

The whole current of authorities shows, however, that the question of

the origin of the sovereignty is immaterial in connection with the

rights of private persons professing to claim under the provisions of

the treaty of cession. _Cook v. Sprigg_ (1899, A.C. 572). Such a

treaty only becomes enforceable as part of the municipal law if and

when it is made so by legislative authority. That has not been done.

The sense in which the treaty has received legislative recognition I

will refer to later.... From the earliest period of our history, the

rights of the natives have been conserved by numerous legislative

enactments. Section 10 of 9 and 10 Vict. cap. 103, called an Act to

make further provision for the Government of the New Zealand Islands

(Imperial, 1846), recognises the laws, customs, and usages of the

natives which necessarily include their customs respecting the holding

of land. Section 1 of 10 and 11 Vict. cap. 112, called an Act to

promote colonisation in New Zealand and to authorise a loan to the New

Zealand Company (Imperial, 1847), recognises the claims of the

aboriginal inhabitants to the land. To the same effect is the whole

body of colonial legislation. The expressions "land over which the

Native title has not been extinguished" and "land over which the

Native title has been extinguished" (familiar expressions in colonial

legislation), are both pregnant with the same declaration. In the

judgment of the Privy Council in _Nireaha Tamaki v. Baker_ (1901, A.C.

561), importance is attached to these and similar declarations in

considering the effect of colonial legislation. There the whole of the

legislation from the date of the constitution is summarised. This

summary includes the principal colonial Acts. Referring to section 5

of "The Native Rights Act, 1865," their Lordships say: "The

Legislation, both of the Imperial Parliament and of the Colonial

Legislature is consistent with this view of the construction of 'The

Native Rights Act,' and one is rather at a loss to know what is meant

by such expressions as 'Native title,' 'Native lands,' 'owners,' and

'proprietors,' or the careful provision against sale of Crown lands

until the Native title has been extinguished, if there be no such

title cognizable by the law, and no title therefore to be

extinguished." I might refer further to less precise but equally

important expressions, such as "tribal lands," in "The Native Land

Act, 1873," section 21. The various statutory recognitions of the

Treaty of Waitangi mean no more, but they certainly mean no less than

these recognitions of native rights.

[195] Tawhaki, the God-man, whose name frequently occurs in all the

ancient mythology of the Maori race.

[196] Rain and wind--figurative expressions denoting wars and tumults.

[197] Te Wherowhero Potatau, the first Maori king.

[198] Tawhiao, the second Maori king.

[199] A Total Abstinence organisation.

THIS RELIC OF THE TREATY CAME INTO THE AUTHOR'S POSSESSION AFTER

THE VOLUME WAS PRINTED AND IS NOW INSERTED AS A SUPPLEMENT.

_No te 30 o nga ra o Hanuere, 1840_

_E taku hoa aroha,_

_Tenei ano taku ki a koe; na, tenei ano tetahi kaipuke manawa kua u

mai nei, me tetahi Rangatira ano kei runga, no te Kuini o Ingarani ia,

hei Kawana hoki mo tatou. Na, e mea ana ia, kia huihuia katoatia mai

nga Rangatira o te Wakaminenga o Nu Tireni, a te Wenerei i tenei wiki

tapu e haere ake nei, kia kitekite ratou i a ia. Koia ahau ka mea atu

nei ki a koe, e hoa, kia haere mai koe ki konei ki Waitangi, ki taku

kainga ano, ki tenei huihuinga. He Rangatira hoki koe no taua

Wakaminenga tahi. Heoi ano, ka mutu taku._

_Naku,_

_Na tou hoa aroha,_

_Na te PUHIPI._

_KI A TAMATI WAKA NENE._

TEXT OF THE INVITATION SENT TO TAMATI WAKA NENE TO ATTEND THE

MEETING OF CHIEFS AT WAITANGI, 5TH FEBRUARY, 1840.

(ORIGINAL IN THE AUCKLAND MUSEUM).

TRANSLATION

(By H. M. STOWELL).

_Of the 3Oth day of January, 1840._

_O my dear friend._

_Herewith something special from me to you. A Man-o-war vessel has

called here particularly, with a certain Chief on board. He is sent by

the Queen of England, as a Governor for us._

_Now, he desires that as many representative New Zealand chiefs as

possible be gathered together by Wednesday of next week to see him._

_I now therefore say unto you, O friend, make your arrangements to

come along here to Waitangi, to my home here, to this gathering and

meeting. For you yourself are a typical representative chief and will

be welcomed to the meeting as such._

_That is all, mine ends here,_

_From your sincere friend,_

_From Te PUHIPI (Mr. Busby)_

_To Tamati Waka Nene._

BIBLIOGRAPHY

The following authorities have been consulted during the compilation

of this work, and will serve as a useful bibliography of the treaty:--

A Chapter in the History of New Zealand. Sir W. Fox. 1883.

Adventure in New Zealand. E. J. Wakefield. 1845.

An Appeal on Behalf of the Ngatiraukawa Tribe. T. C. Williams. 1873.

Ao Tea Roa (Long White Cloud). W. P. Reeves. 1898.

Appendix to Twelfth Report of New Zealand Company. 1844.

Aureretanga. G. W. Rusden. 1888.

Australia and New Zealand. A. Trollope. 1873.

Authentic and Genuine History of the Signing. Rev. W. Colenso. 1890.

Britain of the South. C. Hursthouse. 1857.

British Colonisation of New Zealand. Aborigines Protection Society. 1846.

Christian Mission to the Aborigines of New Zealand. Rev. J. Warren. 1863.

Correspondence with Earl Grey. Wesleyan Mission Committee. 1848.

Early History of New Zealand. Brett Publishing Co. 1890.

Early History of the Catholic Church in Oceania. Bishop Pompallier. 1888.

England and the New Zealanders. Sir W. Martin. 1847.

Extracts from Final Report. G. Clarke. 1846.

Facsimiles of Treaty of Waitangi. H. H. Turton. 1877.

Forty Years in New Zealand. Rev. J. Buller. 1878.

Governor Gordon and the Maori. Sir R. Stout. 1883.

Handbook for Emigrants. Dr. J. Bright. 1841.

Handbook to New Zealand. E. J. Wakefield. 1848.

Heke's War. Rev. R. Burrows. 1886.

History of Early Colonising of New Zealand. H. T. Kemp. 1901.

History of New Zealand. Alfred Saunders. 1896.

History of New Zealand. G. W. Rusden. 1883.

Judgments of Court of Appeal in re _Tamihana Korokai v.

The Solicitor-General_. 1912.

Judgments of Mr. Justice Chapman and Sir William Martin, C. J.,

in re _Regina v. Symonds_. 1847.

King Country, The. J. H. Kerry-Nicholls. 1884.

Kohimarama Conference, Proceedings of. 1860.

Letters from New Zealand. Dr. Martin. 1845.

Life and Times of Patuone. C. O. Davis. 1876.

Life of Archdeacon Henry Williams. H. Carleton. 1874.

Life of Rev. J. H. Bumby. Rev. A. Barrett. 1852.

Life of Bishop Selwyn. Rev. H. W. Tucker. 1879.

Life of Captain James Cook. Rev. A. Kippis. 1788.

Life of Lord John Russell. J. Reid-Stuart.

Life of Rev. Samuel Leigh. Rev. A. Strachan. 1863.

Life of Sir George Grey. W. L. and L. Rees. 1892.

Manawatu Purchase Completed. T. C. Williams. 1867.

Maori English Tutor. H. M. Stowell. 1913.

Maori History. Lieut.-Col. M'Donnell. 1887.

Maori King, The. Sir John Gorst. 1864.

Maori Record (Newspaper). 1906.

Memoir of Rev. R. Davis. Rev. J. D. Coleman. 1865.

Narrative of United States Exploring Expedition. Commander Wilkes. 1845.

New Zealand. Alexander Kennedy. 1873.

New Zealand. Charles Terry. 1842.

New Zealand. Dr. R. G. Jameson. 1841.

New Zealand and its Aborigines. W. Brown. 1845.

New Zealand and its Colonisation. W. Swainson. 1859.

New Zealand and the War. W. Swainson. 1867.

New Zealand Gazette (Newspaper). 1840.

New Zealand Journal. 1840-1848.

New Zealand Revisited. Sir John Gorst. 1908.

New Zealand Year Book. 1912.

Notes on Early Life in New Zealand. Rev. G. Clarke. 1903.

Notes on Maori Matters. Mr. Justice Johnston. 1860.

Old New Zealand. F. E. Manning. 1863.

Parliamentary Debates (English), vols. 81-82. 1845.

Parliamentary Papers (English). 1839-1848.

Personal Narrative of Visits to New Zealand. Dr. Marshall. 1836.

Proceedings of the Royal Colonial Institute. January 1883.

Remarks on New Zealand. Captain R. Fitzroy. 1846.

Remarks on New Zealand. W. Brodie. 1845.

Reminiscences of a Veteran. Col. T. Bunbury. 1861.

Reminiscences of the War in New Zealand. Lieut. Gudgeon. 1879.

Romance of a Pro-Consul. James Milne. 1899.

Sketches in New Zealand. James Cowan. 1901.

Story of New Zealand. Dr. A. S. Thompson. 1859.

Te Ika a Maui. Rev. Richard Taylor. 1855.

The Aborigines' Friend, pp. 139-157.

The New Zealanders and their Lands. D. Coates. 1844.

The New Zealand Question. L. A. Chamerovzow. 1848.

The War in New Zealand. Sir W. Fox. 1860.

Voyage to the South Pole, vols. viii. and ix. Dumont D'Urville.

Waitara War--Numerous Pamphlets relating thereto.

_Printed by_ R. & R. CLARK, LIMITED, _Edinburgh_.

[Illustration: MAP OF THE BAY OF ISLANDS]

[Illustration: MAP OF CLOUDY BAY]

End of Project Gutenberg's The Treaty of Waitangi, by T. Lindsay Buick