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The Pamphlet Collection of Sir Robert Stout: Volume 67

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As very considerable dissatisfaction obtains : among those persons of the European race who daring the last few years have purchased or leased, or have negotiated for the purchase or lease of native lands in the North Island of New Zealand, principally owing to the conflicting and fluctuating legislation on that question, and as the present method of dealing with their estates is universally deprecated by the Maori people. The disposition and dealing with native lands, whether Government or otherwise, being one of vital importance to the North Island, I purpose, to endeavour to show some of the causes which have led to the existing discontent in this matter. I consider it to be the duty of all persons who have any knowledge of the subject to give such information as is in their power; in order that steps may be taken by the Legislature of the colony to enact such measures as will remove or alleviate the difficulties at present besetting this important question. In order to do so, and make things clear to persons who have recently arrived in the colony, it is proposed to proceed with it as follows:—
  • Firstly.—The Maori tenure of land before the arrival of Europeans in New Zealand.
  • Secondly.—European dealings from their first arrival until 1840, when the law of England, so far as it was applicable to the circumstances of the colony, became the law of New Zealand.
  • Thirdly.—The system of Government land purchases from 1840 until 1862, when the Native Lands Act, 1862, was passed.
  • Fourthly—The legislation respecting Native Lands Courts and Lands from 1862 to 1886.
  • Fifthly.—With measures which might be enacted to facilitate and simplify the dealing with, and disposition of Native Lands.

It is not my intention to enter at length into the subjects included in the three first heads, bat only so far as will make the whole intelligible to the reader. The other two will be dealt exhaustively with, as feeing what immediately concerns the whole colony at the present time.

Firstly.—The Maori tenure of land prior to the arrival and settlement of Europeans in New Zealand was not of such a vague and undefined nature as many persons suppose. There were a number of tribes inhabiting the country, and the estate of each had its well-known and established boundary. Within these great external limits were subdivisions for each sab-tribe or sept (hapu) to the tribe. These boundaries were occasionally varied, altered, or expunged by conquest in war, and in a few instances by intermarriages. This latter was not a general rule, because, according to native custom, husband and wife were not one as far as any description of property was concerned. If a man belonged to one tribe and his wife to another, he could reside with her on her people's land, and "vice versa," but neither acquired any right to the lands of the other. The children could occupy the lands of both tribes, but they always distinguished between that which they inherited from the male line and that which accrued to them from the female. Sometimes an old chief would partition his lands amongst his children together with certain hapus. Land was occasionally given for services rendered in war, or otherwise. There are a few cases where an actual purchase has been made.

In the matter of acquiring land by conquest :—If a tribe was exterminated, or if nearly annihilated, and the small remnant was captured, they became the slaves (taurekareka), and the land the absolute property of the conquerors, the chiefs of whom would at once proceed to mark out portions for themselves and their respective followers. The rule was first come first served, precisely similar to miners pegging out claims in a new rush on a gold-field. One man would put up a pole with a bunch of feathers on it, another would place a long stone in the ground for his boundary. A gentleman who did not like to travel to the summit of a mountain, and who being of high rank was very sacred (tapu), would quietly observe, "that hill is my head.' On one occasion a chief had been left out in the scramble, and he went to an adjacent forest and filled his hair with the berries of the hinau tree. On rejoining his companions he shook the berries on to the ground, and said that is my piece, pointing to the spot where he had procured them, and that constituted a good and valid title, and his descendants own that land to this day. If a conquest was partial, each party held that which they occupied; but this generally produced further fighting. They both retained possession until one was strong enough to conquer or drive the other off. In the case of the original owners being driven off the land, and the victors occupying it, and the fugitives by permission of the party in possession being allowed to return and occupy a portion of their former holdings, they then became the vassals (rahi) of the dominant tribe. They were not body servants, like the slaves (taurekareka), but had to perform feudal service, join in war, paddle the chief's canoe, and supply food for tribal meetings. As far as can be ascertained the lands of a sub-tribe or sept (hapu) were held in common, and there were no cases of individual rights or ownership in land, unless by the death of all but one of the members of a sub tribe.

There is probably no better illustration of Maori tenure than that of the Highland clans before the rebellion of 1745, with this exception that there were no vassals or slaves among the Highlanders; they were all free- page 4 men. The Highlander paid no rent to his chief, who had no more proprietary right in the soil than he had. He would aid his chief in war; but there were cases both among the Celts and the Maoris where the head of a powerful sub-tribe or sept (hapu) declined to join the forces of their acknowledged lord. Then there is another similarity. "Mec" in Scotch means "son or offspring of;" in the Maori the word "Ngati" has the same signification. For instance, Mackay—offspring of Kay; Macdonald—of Donald; Ngatitamatera—off-spring of Tamatera; Ngatitoa—of Toa. Now, for chiefs we have Eric Mackay, Lord Reay, head of the clan Kay, and the sub-tribes or septs of Scowrie, Bighouse, &c. on the Highland side, and Taraia Ngakuti of the Ngatitamatera, and the septs (hapus) of the Ngatipare of Cape Colville and the Ngatitawhake of Ohinemuri, &c., representing the Maori clan of Tamatera, Pare and Tawhake being children of Tamatera.

Secondly.—The first Europeans who arrived in New Zealand with the intention of living in the country consisted of traders, runaway sailors, and convicts who had escaped from Botany Bay. The missionaries came at a subsequent period. However, all four classes dealt with Maori lands in much the Fame manner—paying for large areas with goods and articles of small value. But, in justice to these old pioneers and to the natives, it must be said that both parties were contented with their bargains, and such a thing as repudiation was unknown. A chief's word was his bond in those days. After the Charter of New Zealand as a British colony, on the 16th of November, 1840, and its subsequent proclamation as such, these land claims were investigated by Commissioners specially appointed for the purpose, and which though recognised as valid, yet the most of them were reduced very considerably in extent; but, strange to relate, the land thus cut off, or excluded from the claim was in many instances retained by the Crown, and not given back to the original Maori owners. The next and most extensive land purchase operations were made by an association which had been formed in England, known as the "New Zealand Company," for the purpose of acquiring lands in and colonising New Zealand. Their operations were, in the first instance, confined to the country now forming the provincial districts of Taranaki, Wellington, Nelson, and Marlborough, but were subsequently extended to other portions of the Middle Island. This company dealt in a more liberal and systematic manner with the natives than the previous mentioned classes of purchasers. Their operations were in full swing when Captain William Hobson, R.N., arrived at the Bay of Islands as Her Majesty's Consul, etc., which brings us to the subjects dealt with under the third heading.

Thirdly.—In 1840 the Maori people were very numerous and warlike, and were well-supplied with arms and ammunition, and any attempt to have taken their lands by force would have resulted in the extermination of all the Europeans then residing in the country. Captain Hobson therefore in that year entered into a treaty, called the Treaty of Waitangi, with a number of the principal chiefs of the Northern tribes, at a place known as Waitangi, at the Bay of Islands, It was subsequently signed by the Waikato and several other tribes. This treaty extended the Queen's protection to the Maori people, and guaranteed to conserve to them all the rights to their lands, forests, fisheries, and other property they possessed In return the chiefs agreed to cede to the Queen the sovereignty they possessed over their respective tribes and people. Also, that the Crown should have the pre-emptive right to purchase such lands as the natives were willing to sell.

New Zealand was thus made a British colony, but as one of the dependencies of New South Wales, and Captain Hobson, R.N., was appointed to be the Lieutenant. Governor thereof.

The Government, at first, only purchased sufficient land for their immediate requirements in and around Auckland.

In 1842, Captain Wakefield, the agent for the New Zealand Company at Nelson, and several influential settlers, were killed by Te Rauparaha and the Ngatitoa tribe, at Wairau, Marlborough, owing to a dispute about the purchase of that district by the New Zealand Company. This was the first European blood shed in connection with the purchase of land.

In 1846, Sir George Grey, then Governor of the colony, inaugurated a system of Government land purchase, and a very stringent ordinance was enacted by the Governor and the Legislative Council (November 16, 1846). The preamble is given to show how determined the Crown were to uphold the pre-emptive rights which had been acquired under the "Treaty of Waitangi,"

"An ordinance to provide for the prevention by summary proceedings of unauthorised purchases and leases of land,"