Mr. Commissioner Spain's Report to Governor Fitzroy, on the New Zealand Company's Claim to the Nelson District.
As the Company's Principal Agent has preferred claims under these deeds to three separate tracts of land in different parts of the Northern and Middle Islands, I propose, for the sake of perspicuity, to divide this report into three parts, by which I shall be enabled to deal separately with the claims to the several districts of Nelson, Porirua, and Manawatu; and the general preliminary observations in the first part must be considered as applicable, with certain modifications, to the remaining divisions:—
I will in the first place briefly mention under what circumstances, and upon what grounds, the Agent of the Company lays claim to these lands; and after adverting to the evidence which I have taken at different times and places in this case, I will state what is my final judgment upon a careful review of the whole subject, together with the reasons which have induced me to arrive at such a conclusion.
I entered into the examination of this case on my first arrival at Port Nicholson, when Colonel Wakefield produced in my Court the two deeds before referred to, under which he claimed the lands already mentioned. The first of these deeds was executed at Kapiti by the chiefs Rauparaha, Rangihaeata, Hiko, and others, members of the Ngatitoa Tribe, and professes to convey all the claims to land of the signing parties within the 43rd degree of South latitude, in the Middle Island, and an imaginary line drawn from Mokao, on the West, to Tehu Karoro, on the East Coast of the Northern Island. A considerable quantity of merchandise was given on this occasion to the signing parties, consisting of the articles at that time usually given for land in this Colony, namely, blankets, guns, gunpowder, and other articles page 55 (a list of which is inserted in the deed of conveyance), the receipt of which has never been wholly denied by the Natives.
The second deed under which this land is also claimed was executed in Queen Charlotte's Sound, on the 8th November, 1839, by a large number of the Natives who compose one of the numerous branches of the Ngatiawa Tribe. The lands alleged to be conveyed are nearly of the same description, the extreme boundaries are precisely the same with those mentioned in the former deed, and the consideration then paid was of a similar character and of nearly equal amount.
These are the two deeds to which in my former reports I have more than once had occasion to allude, as the overriding deeds under which the New Zealand Company asserted that it had "acquired territories amounting to about one-third of the whole surface of New Zealand." Had I therefore been compelled to inquire into the title of that body to but a moiety of this enormous territory, my labours at this moment would have been far from a termination, but my investigation of its claim has been of course materially narrowed by the arrangement with Her Majesty's Government, which restricted the selection of land by its Agent in the Colony to certain quantities of land in certain localities. I have also myself still further lessened the extent and difficulty of the inquiry on all occasions by calling upon the Principal Agent to produce in my Court plans showing the exact blocks, and the contents in acres, on which it was his intention to produce evidence, and by restricting him from extending the surveys beyond the boundaries delineated upon the plans after they had been exhibited in Court.
From various causes connected with my investigation of the Company's claim to the Port Nicholson District, I was unable to take any Native evidence on this subject until the 26th April, 1843, when I examined Rauparaha and Rangihaeata, the principal parties, as I have already shown, to the first or Kapiti deed at Otaki. I have adverted at length in my first general report, under date the 12th day of September, 1843, to the circumstances which compelled me on that occasion to enter into the examination of such important witnesses on the subject of the sale by them of land to the New Zealand Company without the presence of an agent of that body to conduct the inquiry on its behalf, and to point out to what portions of land and in what districts a title was sought to be substantiated by their testimony. My investigation, therefore, at Otaki, so far as the two last-mentioned witnesses were concerned, was directed to the whole transaction of the purchase at Kapiti, as already detailed by Colonel Wakefield in his examination at Port Nicholson; and having heard his statement as to what lands he supposed, himself to have acquired by this purchase, I was anxious to ascertain what portions of it the conveying parties would now acknowledge they intended at the time to alienate, and to what extent they would now admit the payment of the consideration which had been already deposed to.
I was particular in my inquiries of Rauparaha as to what lands he had sold to Colonel Wakefield on the Middle Island as well as the Northern Island, and while he acknowledged the receipt of a considerable quantity of property, he would not admit that he had ever sold or intended to sell any other place than "Taitapu," by which name the Natives, I believe, designate a district in Massacre Bay, forming part of the Nelson Settlement. Rangihaeata's testimony was equally positive as to the sale of no other place than "Wakatu," the Native name of the district in the immediate vicinity of and including Nelson Haven. I subsequently examined Hiko and Tutahanga, also signing parties to the Kapiti deed, and their evidence, though not so reluctantly given as that of the other two, was of a very similar nature, and confirmatory of their statements.
I need not here advert to the melancholy occurrence which prevented my visiting the Middle Island in my judicial capacity as I had intended in June, 1843. It will be sufficient for me to say now that I had previously to that event every reason to anticipate an arrangement with those chiefs by a payment from the Company which should have set at rest for ever the existing disputes on the subject of the surveys and occupation of land in that Island. From every conversation I had with the Natives upon the subject, I was induced to suppose them willing to enter into such a composition.
I shall have occasion to allude presently to the nature and extent of their territorial rights on this Island, when I come to speak of the district to which they have so fatally attempted to assert and maintain their title.
Such being the state of the evidence on the Company's claim to land in the Middle Island, I opened my Court at Nelson to investigate the case on the spot on the 19th of August last. I was perfectly willing to entertain the claim of the Ngatitoa chiefs whom I have already named, so far as I was assured of their actual residence on and cultivation of parts of the various portions of land of which they declared themselves owners; but in accordance with a principle which I have more than once laid down in my communications to your Excellency and your predecessors, and which has guided my decisions in overy instance, and been confirmed by all the evidence I have ever taken on the subject, namely, that mere conquest, unsupported by actual and permanent occupation, and more particularly where the conquered parties still remain in occupation, or having left it for a short time return and occupy it for a series of years, bestows no title on the invaders. I felt it my duty to receive the evidence, and listen to the statements of the Natives residing within the blocks surveyed by the Company to be given out to its purchasers, in order to ascertain who were the actual owners, according to what I had found to be the Native custom.
Previously to visiting Nelson I sent forward my interpreter, Mr. Meurant, who employed himself in visiting the several districts in the Nelson settlement, and endeavouring to ascertain the views of the different tribes or families immediately interested. From him I learned, on my arrival at Nelson, that the Natives were anxiously waiting my coming amongst them, and that there existed a favourable disposition in the minds of those in the neighbourhood of Nelson, Motueka, and Massacre Bay. The Natives from all these places had received large presents from the late Captain Wakefield on his first arrival with the preliminary expedition, which they were ready to admit before me; and under these circumstances, Mr. Meurant informed me that he anticipated an early settlement of the question so far as they were concerned, and that although he thought it not unlikely they might expect some small further payment, yet they had all expressed an anxious desire to abide the terms of my decision on the subject, and to rest content with whatever I should award them.page 56
Herewith I enclose your Excellency a copy of the minutes of the proceedings in my Court containing the substance of What I stated to the Natives on the subject of this purchase, and the, manner in which a proportion of the whole sum ultimately agreed upon to be given to the Natives as a further payment (£800) was appropriated by Mr. Clarke under my sanction and superintendence. The first witnesses examined were called before; me by Colonel Wakefield for the purpose of proving the fact that various presents were made soon after the arrival of the Nelson preliminary expedition by the late Captain Wakefield, the then Resident Agent, to the Natives of Wakapuaka, Motueka, and massacre Bay.
A schedule herewith enclosed, showing the appropriation of goods; of various descriptions to the amount of £980 15a. to the Natives of the above districts, was put in and proved on this occasion, and substantiated by the concurrent testimony of several gentlemen who witnessed this transaction with the Natives, and was subsequently verified by a reference to the books of the Company's storekeeper. From this testimony it appeared that the late Captain "Wakefield, immediately on his arrival with the preliminary expedition, assembled the resident Natives of the several districts in the immodiate vicinity of Nelson and informed them that he was about to take possession of the land by virtue of a purchase made by Colonel Wakefield, at Kapiti, of Rauparaha, Hiko, and others; but that, as it was customary on such occasions to make presents to the resident Natives, he was ready to give them certain articles of merchandise, which they were to receive on the distinct understanding that such goods were not to be regarded in the light of a further payment for the land, but merely as presents.
It is impossible to deny to the memory of Captain Wakefield the tribute of praise so justly due for this liberal and judicious policy, and it is to be regretted that a similar course bad not been adopted in other districts on the like occasions, in which case I feel persuaded that much of the opposition which in other settlements has so severely retarded the colonists would have been obviated, or removed. At the same time it may be remarked that the distinction thus sought to be drawn between a further payment for land and a present was somewhat too fine-drawn for the conceptions of the Natives, and I think Captain Wakefield carried his assumed position too far in claiming the land under a purchase from the conquerors only, and not admitting, to some extent, the title or the Natives whom he found in actual possession. Thus, while he made them presents to conciliate their friendship and good-will, and in a manner reconcile them to parting with their land, he refused to admit their title to any of it, and consequently was at no pains to procure from them any acknowledgement of the receipt of the presents, or any declaration in writing of the lands which they then virtually consented for such consideration to alienate.
Had this been done, I have little doubt that the resident Natives would have regarded and acknowledged the transaction as a regular sale and disposal of their lands. As it was, an over-anxiety not to compromise the Company's title under the original alleged purchase in some measure counteracted the beneficial results of the otherwise judicious course adopted by the Resident Agent.
Te Iti, the only Native witness called before, me, by Colonel Wakefield, endeavoured to throw discredit on the testimony already taken, and gave his evidence not without reluctance and some prevarication. I saw that he was under the impression that by denying having received, in common with many others, the presents which had been made to him by Captain Wakefield, he should insure for his people some further payment, in order to obtain which few Natives will refrain from making statements contrary to fact. Mr. Protector Clarke intimated to me that Te Iti was not speaking the truth; that he had been with him in the morning before he came into Court, instructing him as the advocate of the Natives as to the real state of the case, and that he then told a different story to his present statement. Mr. Clarke then gave him a strict cross-examination. I was therefore glad to find Mr. Clarke and Colonel Wakefield join in an application for an adjournment, with a view to obtain an opportunity of impressing upon the Natives the necessity and propriety of their stating the truth, and of explaining to them that an admission of what had actually taken place on the arrival of Captain Wakefield would not have the effect of lessening any claim they might show they still justly advanced, or of causing their real interests to be overlooked or disregarded.
I readily granted the adjournment, and endeavoured through my interpreter to impress upon the Natives generally the propriety and expediency of their telling me the truth; after which they separated to meet Mr. Clarke again in the afternoon.
Next morning, however, Colonel Wakefield applied to me to suspend my inquiry, and to allow him to compromise the matter, by authorizing Mr. Clarke to negotiate with the Natives for the receipt of a further payment; to this I immediately consented, and went myself among the assembled Natives accompanied by Mr. Clarke and Mr. Meurant, who had much conversation with many of them, the general tenor of which was favourable to the terms of the settlement we were anxious to accomplish. I need say no more on this conference, which your Excellency will see fully described in the minutes, before referred to, and which resulted in the payment as above stated to all the Natives present of the sum which Mr. Clarke had agreed upon with Colonel Wakefield as a final consideration for the cession of their land. I proceed, therefore, at once to state in a few words my reasons for sanctioning the composition which was volunteered by Colonel Wakefield.
The evidence of the gentlemen who had witnessed the transaction had left no doubt upon my mind. that a very liberal distribution of goods had taken place under Captain Wakefield's directions amongst the Natives occupying the several districts before referred to, but that, owing to the circumstances mentioned abort, no deed had been signed on that occasion defining the boundaries of the land treated of between the parties concerned.
From Te Iti I had also, by a little cross-examination, elicited, a reluctant confirmation of these statements, and an admission that he, with many others, had received presents from Captain Wakefield, who had endeavoured to impress upon them that the land had been already sold by Rauparaha and others, and that what he then gave them was merely a freewill offering, and by no means to be regarded as a further payment.
I was satisfied from all the evidence that the Natives had always looked upon the transaction with Captain Wakefield as an alienation of their rights and interests, in the lands treated of; more page 57particularly as it appeared that they had at the time stipulated for the retention of a certain portion of a large wood at Motueka, as well as the retention of their pas and cultivations; and I found that the conditions, as regarded Motueka, had been in a great measure complied with, by the allottment into Native reserves of a considerable portion of the "Big Wood" in that Native witness (and I was aware he spoke the sentiments of his countrymen) could not deny having received the presents so often referred to, or that he then considered them as given in lieu of his interest in the land; but he evidently wished to ground a claim to some further remuneration on the double plea that he had received no portion of the payment originally made to Rauparaha at Kapiti (whom he, asserted he had assisted in conquering the country), and that no boundaries of the land were mentioned as, agreed upon between Captain Wakefield and himself. Under these circumstances I was inclined to conclude that the resident Natives had not only been amply remunerated for their land by presents in which, with scarcely an exception, they had all participated, but that they were aware at the time of the nature and satisfied with the termination of the transaction to which they had been parties. I also bore in mind that the lands included in the Company's surveys, with the exception of the Wairau, were those of which Rauparaha and Rangiaheata had admitted the sale to Colonel Wakefield at Kapiti, under the denominations of Wakatu and Taitapu. Thus, whatever might have been their right to or interest in these lands, by their own evidence it had been alienated and paid for. Unless, therefore, some much stronger evidence than I had yet heard could be given by the Natives in contravention of the statements made by the English witnesses, I was prepared to decide in favour of the Company, without allowing the resident Natives any further compensation.
But when I found Colonel Wakefield ready, after examining but one Native witness, to negotiate for a further payment, and understood from Mr. Clarke that he was prepared to arrange for the final alienation of the Native claims by the payment of a few hundred pounds, which the Principal Agent was willing to advance, I was glad of an opportunity of so easily complying with the expectations without acknowledging the rights of the Natives, and by effecting an immediate adjustment, of leaving this settlement in quiet possession of the land, and on amicable terms with the resident aborigines.
Your Excellency will be glad to learn that this matter was concluded without any disturbance; that there were but a few of the usual instances of discontent shown on such occasions by the Natives; and that in a day or two after the transaction they had all returned to their accustomed places of abode in the several districts where they reside. Mr. Clarke paid Nga Piko £10 for services he bad rendered in assisting to get the other Natives to accept the offered terms.
The surplus of £290, out of the total sum of £800 agreed upon between Mr. Clarke and Colonel Wakefield, was designed by the former gentleman to be appropriated to the resident Natives at Massacre Bay, who had not attended the Court.
After waiting several days in expectation of the arrival of these Natives, I was induced, in order to save time, to send Mr. Clarke, accompanied by Mr. Meurant, my interpreter, to Massacre Bay, to negotiate with the resident Native there, and bring them over to receive their proportion of the compensation in my presence. I had seen two of the chiefs from this district, who were very favourably disposed towards the settlement of the question, and who, with some of those who had been paid already accompanied Mr. Clarke to Massacre Bay. I must here refer your Excellency to the enclosed letter from Mr. Clarke, addressed to me on his return from Massacre Bay, reporting the progress and result of his mission, for information upon this part of the subject.
The evidence 1 had taken was direct and conclusive as to the participation by the Massacre Bay Natives in the presents distributed by Captain Wakefield; and it will be seen by Mr. Clarke's letter that they all admitted this fact, with the exception of one man, who stated that through absence he had not come in for his proper share on that occasion; notwithstanding which the resident Natives of Motupipi positively refused to take any further payment, alleging their former ignorance of the value of the coal found in their neighbourhood as a ground for now demanding some enormous consideration as an equivalent for the newly discovered worth of their property.
I entirely concur in the view which Mr. Clarke has taken of this case under these peculiar circumstances, and I see no reason for not including the district of Massacre Bay in the award to the New Zealand Company, subject of course to the payment of the sum of £290, which Mr. Clarke has placed to his own credit in the Union Bank of Australia at Nelson, leaving it to your Excellency to determine in what manner it shall be disposed of for the benefit of those for whom it was intended, should they still refuse to accept it.
I should have felt it my duty, on Mr. Clarke's return, to have insisted upon the production in my Court of the Native witnesses from Massacre Bay, or even, if necessary, have adjourned my sittings to that district, for the purpose of taking their evidence upon the spot; but Mr. Clarke having informed me in his letter that he had no intention of offering any opposition to the claim advanced by the Company, and having declared himself satisfied with the coincidence of the Native statements with the sworn testimony of the European witnesses, I deemed such a course unnecessary, more particularly as Mr. Clarke has expressly stated "that he could only consider the proposed payment in the light of a [gap — reason: damage]gratui and not as a matter of rights so far as the Natives of Massacre Bay were concerned." I am thus enabled to report to your Excellency the quiet and satisfactory adjustment of the Native claims in all the districts (excepting Wairau) in the Nelson settlement.
In reporting on this case upon the evidence taken at Nelson, I may perhaps be allowed to draw your Excellency's attention to an extraordinary confirmation, as exhibited in the conduct of Captain Wakefield on his arrival at Nelson, of the view which I have long since taken of the purchase alleged to have been made by Colonel Wakefield at Kapiti. I Lava shown in former communications on the subject, that the territory sought to be affected by that transaction was as enormous in extent as the page 58 claim which was advanced under it was preposterons in principle. I have shown that lands was thus claimed to which those who pretended to convey it had not in equity or by Native custom the shadow of a right; upon which these people had never exercised any acts of ownership whatever since the time when, in conjunction with their then allies, its present occupant, it was conquered by the extermination or captivity of its original proprietors.
I have shown that many tracts of these vast territories are now in the peaceable and unquestioned possession, in the strictest meaning of the term, of large bodies of Natives, who may be divided into three classes—those who seized on and had retained possession of portions of the conquered territory; those who have returned from captivity, and now, from long sufferance, are fairly repossessed of their lands; and those who, as was the case at Wanganui, having escaped to the mountain fastnesses in the interior on the approach of the invaders, returned on their departure, and have ever since retained unmolested occupation of their ancient possessions; and, finally, personal investigation has convinced me that these resident Natives had never been in the remotest degree parties to, many of them never heard of, the transaction by which the land they dwelt on, the [gap — reason: damage]soil they tilled, was sought to be disposed of to another by the pretended possessor of some imaginary rights of territorial sovereignty.
I have set it down as a principle in sales of land in this country by the aborigines, that the rights of the actual occupants must be acknowledged and extinguished before any title can be fairly obtained upon the strength of the mere satisfaction of the claims of the self-styled conquerors, who do not reside on nor cultivate the soil. In short, that possession confers upon the Natives of one tribe the only and real title to land as against any of their own countrymen; and that the residents, whether they be the original unsubdued proprietors, the conquerors who have retained their possession acquired in war, or captives who have been permitted to re-occupy their land on sufferance—in all cases the residents, and they alone, have the power of alienating any land.
I have no need to seek for confirmation in the acts of others of the correctness of a principle which I have found to be universally acknowledged, and which the concurring though often reluctantly given and therefore more material testimony of every Native I have examined has invariably substantiated, but the very first act of the leader of the Nelson preliminary [gap — reason: damage]xpedition in paying over again (for such was the real state of the case) the actual residents whom he found in occupation and undisturbed possession for the very land which, two years before, had been pretended to be conveyed to the Company by two or three chiefs of another tribe, affords so convincing a proof, from a quarter where least expected, at once of the justice of my decisions, and the deficiency, and his conviction of the deficiency, of the alleged original purchase, that I cannot pass it over without particular observation.
It is stated in the evidence given by Colonel Wakefield and Brook the interpreter, that Captain Wakefield touched at Kapiti on his way to Nelson; that he saw Rauparaha, who then acknowledged his sale of Blind Bay to Colonel Wakefield, a curious coincidence, it may be remarked, with his evidence given nearly three years afterwards, wherein Taitapa, in Blind Bay, forms the solitary exception to his denial of any sale of land to the Company's agent. Rangiaheata has also, as I have stated above, admitted having disposed, by the transaction at Kapiti, of his rights in Wakatu, in Blind Bay.
I am now come to speak on the subject of the Wairau. This district is mentioned in the deeds already referred to, but, your Excellency has seen by what I have said concerning Rauparaha's evidence, was never admitted by that chief to have been sold to Colonel Wakefield, nor was any particular testimony given on the subject before me at Port Nicholson. I was naturally very anxious on this subject when I opened my Court at Nelson, and certainly did not anticipate that it would be passed over entirely without any evidence being offered on the subject. Such, however, was the case; and although the principal agent put into Court a plan showing the land surveyed and required there, he attempted no proof of its purchase, and made no reference to the subject when Mr. Clark asked £800 as the amount of compensation to be paid to the Natives, exclusive of the district of the Wairau.
Reporting, then, upon this case under these circumstances, considering the positive denial of Rauparaha and Rangiaheata of the sale, the absence of any proof by Colonel Wakefield of its purchase, or of Captain Wakefield having, on his arrival, made any other bargain with the resident Natives or proprietors of it, as he did with those of the other districts comprising the Nelson settlement, I am compelled to state that I am not prepared to recommend that the district of Wairau be concluded in the Crown Grant to be made to the New Zealand Company of the land in the Middle Island.
I am aware of the peculiar and very delicate nature of the duty of deciding on this question, involving, as it necessarily must do, a reference to the melancholy occurrence connected with it, which has caused this subject to assume so painfully prominent a position in the eyes of the British Government, and I may perhaps, with equal truth, be allowed to add, the British public. Nevertheless, I have come to the decision expressed above after much and careful deliberation, after a consideration of the evidence which has been given on the whole case, and which I cannot but declare has failed to prove in any way that the district in question was ever alienated to the Company by the parties from whom that body asserts, through its agent, that it has been purchased; and I entertain no apprehension that a candid and impartial perusal of the evidence will ever lead to any other conclusion.
I may now say a few words on the subject of the claims and property of Rauparaha and the Ngatitoa Tribe upon the Middle Island, which arise, as do their claims on the Northern Island, entirely from conquest, consummated by the extirpation or reduction to a state of slavery of the original proprietors, and followed up in some instances by continued occupation and partial cultivation of the land thus overrun.
Driven by their more powerful neighbours, Ngapuhi and Waikato, from the districts which they originally occupied northward of Kawia, the Ngatitoa Tribe, assisted by the Ngatiawa and Ngatiraukawa, conquered and overran the whole coast line of the Northern Island, destroying, leading captives, or driving into their mountain fastnesses, the denizens of the soil, from Kawhia along the seaboard nearly to Hawke's Bay, seizing upon the islands in Cook Strait, and extending their conquests to the shores of the Middle Island, making frequent efforts to subjugate the tribes along the eastern coast as far as Banks Peninsula, which to this day bears marks at Akaroa of the incursions of these ferocious conquerors, and sometimes carrying war, though with less success, into their enemies' country as far south as Foveaux Strait.page 59
From Taranaki to Wanganui, to this day, as I have stated above, remain the tribes to whom the leaders of this expedition apportioned the land they now occupy as their share of the spoils and profits of the war. At the latter place their river enabled the Natives to escape the ravages of the invaders by a timely retreat to the intricate rapids and precipitious cliffs, whither their ememies found it impossible to pursue them.
At several places immediately to the south of Wanganui the original proprietors have regained possession of their residences, where they live as a sort of tributaries to the conquerors in a state of great degradation and oppression; while in the Middle Island, the tribe Rangitane, the original occupants; is reduced to a mere remnant, living in the interior without any fixed dwelling-places, and even now hunted down by Rauparaha and his retainers.
At Manawatu, Otaki, and Waikanae, the tribes Ngatiraukawa and Ngatiawa maintain a possession which Rauparaha would find it fruitless to oppose or deny.
At Port Nicholson Colonel Wakefield's purchase of the residents speaks for itself, and the Wairarapa is at this moment occupied by large bodies of the original Ngatikahuhunu. But have Rauparaha or his tribe ever exercised any acts of ownership over any of the places which immediately after their conquest they did not at once occupy? Certainly not.
At Taranaki, Manawatu, Otaki, Waikanae, and Wellington, Rauparaha has no claim whatever as against the resident Natives, who, having assisted him to conquer those places, located themselves there, and have kept possession ever since, and they would not for one moment recognize or allow any act of his to alienate these places without their consent; while at Wanganui and Wairarapa, the reoccupation by the original proprietors, who were driven by fear to the interior, has equally barred his claim to any land there, which would be repelled by force were he to attempt to take possession.
The case is precisely the same on the southern side of the Strait. The present residents throughout their districts of Nelson, Massacre Bay, and Queen Charlotte's Sound, were also allied with Rauparaha and the Ngatitoa Tribe in the conquest of the Middle Island, and have occupied and retained their present positions since that period; and here again we see Colonel Wakefield attempting to purchase at Queen Charlotte's Sound the rights and interests of the resident Natives.
The various districts, then, in real and bond fide possession of the Ngatitoa Tribe are, on the North Island, from Wainui to Porirua, inclusive of both places; on the Middle Island, in Cloudy Bay, comprising the Wairau, a part of Queen Charlotte's Sound; and in the Strait, the Islands of Kapiti and Mana; and in each and all of these places has the tribe both residences and cultivated lands. To these districts, then, they have always asserted and maintained their just and proper claims, in some instances disposing of, but generally retaining them for their own use; and all this is strictly in accordance with Native usage in the tenure of land, as I have invariably laid it down as the result of all the evidence I have ever taken on the subject.
I have deemed it necessary to go thus much into detail of the acquisition by the present occupants of the immense territory of land sought to be affected by the treaty which was made at Kapiti; and from this cursory statement, founded entirely upon the testimony of the Company's own witnesses, your Excellency will be enabled to form an idea of the proper territorial rights of the chiefs of the Ngatitoa Tribe on both sides of Cook Strait, bearing always in mind the principle of Native property in land, which I hive above endeavoured to explain. But your Excellency will also observe how the refutation of the right claimed for Rauparaha to dispose of lands which he has conquered, but which he has never been able to retain and cultivate, becomes an argument in favour of his legitimate and equitable property in all lands which it can be shown he has since that conquest resided on and used for his own proper purposes.
I must here again revert to the evidence on this subject which I took down in 1842 and 1843. Rauparaha, when examined at Otaki on the 26th April, 1843, stated (when simply asked what took place at Kapiti when Colonel Wakefield was there, "He (Colonel Wakefield) then told me to collect Rangiaeata and others together, and he would make a request to purchase Wairau also; and it dropped at that time, and I have never seen him since." He had immediately before stated that he was paid for—that is, he had sold—Taitapu alone; and on being asked pointedly whether he agreed to sell Wairau, he replied' with a direct negative.
The reference here alluded to as having been made by Colonel Wakefield to Wairau is unnoticed in his evidence, or in that of Mr. Edward Jerningham Wakefield or Brook. I have already stated that Rangiaeata acknowledged at the same time that he had sold only Wakatu on that occasion to Colonel Wakefield, positively denying, the sale of any other land whatsoever. From the only evidence, then, which has been taken on the subject of the Wairau—and even that arose incidentally—it is impossible that any other conclusion can be drawn than that at which I have arrived and recorded above as my deliberate judgment.
We have seen the admission of the sale of two places, Taitapa and Wakatu, Massacre Bay and Blind Bay, by the chiefs under whom the present claim is advanced (though, be it distinctly remembered, even in these instances the resident Natives were subsequently paid over again); and to the occupation by the Company's surveyors and settlers in these districts, no opposition had been offered, up to the date of the sittings of my Court at Nelson, by the original selling parties. Far different is the case as respects the other two districts, of which the sale by the same parties has been as distinctly denied— Porirua and Wairau; in both instances the opposition to the surveys and occupation has been from the first systematic and determined. The inference is inevitable: in the one case the land was allowed to have been sold, in fact had been sold; in the other the sale was denied—in other words had never been effected.
I must here beg your Excellency's particular attention to the date of Rauparaha's evidence at Otaki, 26th April, 1843. I am thankful that it falls not within my province to express an opinion, far less a decision, on the fearful catastrophe which threw the settlement of Nelson into mourning for its best and dearest citizens; but nevertheless I feel it my duty, though a painful one, to remark at this stage of my report upon the extraordinary fact that such evidence should have been in my Court, affecting the very district of Wairau, nearly two months before that catastrophe occurred. I regret the absence of the Principal Agent to the Company on this occasion (the cause was fully explained in my page 60 first general report), because, had he been present, he would have had the opportunity of hearing the evidence and perceiving the disposition of the very material witnesses I then examined. Nor can it be objected that credence cannot be attached to the statements of these two chiefs. I have already remarked that their acts with reference to this land from the first have been strictly in accordance with their teatimony; and it is worthy of remark that the evidence of Hiko and Tutahanga, also signing parties to the same deed, is precisely to the same effect, though taken at Pukurua several days afterwards, and I believe given without any concert with the other witnesses. At the same time I must maintain that had these Natives never in an way alluded to the Wairau, the case as regards that district would be the same, since no evidence of its purchase has been adduced by the Company's agent.
I feel convinced that I can say nothing further which can better explain to your Excellency my arguments and conclusions on this important subject than what I have already stated. Therefore—
I, William Spain, Her Majesty's Commissioner for investigating and determining titles and claims to land in New Zealand, do hereby determine and award that the Directors of the New Zealand Company and their successors are entitled to a Crown Grant of 151,000 acres of land, situate, lying, and being in the several districts of the settlement of Nelson, in the southern division of New Zealand, which said districts are divided as follows, that is to say:—Wakatu or Nelson district, 11,000 acres, already surveyed; Waimea district, 38,000 acres, already surveyed; Moutere district, 15,000 acres, already surveyed; Motueka district, 42,000 acres, partly surveyed—the remaining quantity required to be selected from the portions of land coloured red in the Plan No. 1, hereunto annexed, and herein after more particularly referred to; and Massacre Bay district, 45,000 acres, partly surveyed; the remaining quantity required to be selected from the portions of land coloured red on the said plans; which said several districts and the quantity of land contained in each is particularly described and referred to in the enclosed schedule of the land required for the settlement of Nelson, as put into my Court at Nelson by the Agent to the New Zealand Company, and which said lands are more particularly delineated and described upon the accompanying plans, marked No. 7, saving and always excepting as follows:—All the pas, burying-places, and grounds actually in cultivation by the Natives, situate within any of the before-described lands hereby awarded to the New Zealand Company as aforesaid, the limits of the pas to be the ground fenced in around their Native houses, including the ground in cultivation or occupation around the adjoining houses without the fence; and cultivations, as those tracts of country which are now used by the Natives for vegetable productions, or which have been so used by the aboriginal Natives of New Zealand since the establishment of the Colony; and also excepting all the Native reserves upon the plans hereunto annexed, marked No. 1a, No. 1b, coloured green, the entire quantity of land so reserved for the Natives being one-tenth of the 151,000 acres hereby awarded to the said Company; and also excepting any portions of land within any of the lands hereinbefore described, to which private claimants have already or may hereafter prove before the Commissioner of Land Claims a title prior to the purchase of the New Zealand Land Company.
I have, &c.,
His Excellency the Governor of New Zealand.