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The Pamphlet Collection of Sir Robert Stout: Rare Volume

I. Wiremu Kingi's Tribal Right in the Waitara a Matter for Judicial Inquiry

I. Wiremu Kingi's Tribal Right in the Waitara a Matter for Judicial Inquiry.

The question on which the justice of the war hinges is the right of Teira to sell to Government a block of land, in disregard not only of the tribal right of Wiremu Kingi in the valley of the Waitara, but also of the individual rights of Kingi and other natives having rights to specific allotments therein. The Government would seem to take their stand, mainly, on the negation of Kingi's tribal right.*

* There is considerable difficulty in ascertaining precisely the grounds taken by Government—a difficulty which has been felt as powerfully by those on the spot, as it is in England. As far as can be gathered from the statements which have reached this country, the counts of the plea put in in justification of the war are—That the supremacy of the Crown is threatened—(Governor's Address to the General Assembly); That no claim was asserted or possessed by Kingi—(Ib.); That the purchase by Col. Wakefield extinguished all native rights, Kingi's father and himself having been parties to one of the deeds of sale; That the purchase from the Waikato extinguished all tribal right among the Ngatiawa—(Attorney-General and Mr. Richmond); That the birthright centres in Teira himself—(See p. 37); That Kingi's tribal right is disallowed by his tribe—(Mr Richmond). It is deeply to be deplored, that, in a question of such vita, moment, Government has not laid finger on some decisive point on which to take their stand once and for all.

page 3
In a very brief and imperfect outline of a debate upon the war, in the Legislative Council, on Thursday, Aug. 30th, it is reported that:—

"The Attorney General entered into a lengthened and elaborate examination of the whole question, both with respect to the justice and policy of war, commenting upon the papers which had been laid before the Council, quoting them to show that William King had no title to the land, which was in the first instance, that of Te Whero Whero [the Waikato Chief,] by right of conquest, and that the very land purchased from Teira, and which was the cause of the present difficulty, had been included in a portion of the territory purchased by Col. Wakefield in 1839, but which purchase neither Governor Fitzroy nor Governor Grey had the power to enforce."—(New Zealand Examiner, Nov. 14, 1860, p. 200.)

This accords with the authoritative statement by Mr. Richmond, the "Native Minister," in a paper dated Auckland, 27th April, 1860:—

"King's stand is really taken upon his position as a chief; and possibly had the Ngatiawa not been broken up and driven from their territory, or had the circumstances of King's reestablishment at Waitara been different, his birth might have given him the command over the tribe which he pretends to exercise. It is enough to say that King's right to dictate to them is not recognised by the principal men of the Ngatiawa in Taranaki, and that its attempted exercise is the page 4 real cause of the disturbances which have so long vexed the district."—(Pari. Papers, July 27th, 1860, p. 168.)

In a second memorandum, signed by Mr. Richmond, and dated May 25, 1860, he says, "The right set up by King is simply the old title of the Maori Chief—the right of the strong arm, which he asserts under quite novel circumstances. At the meeting in March, 1859, when Teira's offer was accepted by the Governor, King plainly took this stand. 'Waitara,' said he, 'is in my hand; I will never let it go.' "Again, June 26, 1860, he says, "The only question raised in the purchase of Teira's block was W. King's right to put a veto on the sale." (New Zealander, Aug. 25 and Sept. 5.)

It may be gathered from these citations, that Kingi's veto, so far as regards his tribal right, is denied on the grounds :—

(1)That such right was extinguished by the conquest of the Waikato tribe, and the sale of their right to the Government, or by the sale to Col. Wakefield.
(2)That Kingi's personal right as chief is not recognised by his tribe.

(1.) To elucidate the first of these points, it will be necessary to pass under review the transactions which have accompanied the return of the Ngatiawa tribe to Taranaki.

The main body of the tribe having migrated voluntarily, or been driven southward by the Waikato, the remnant sold a district of 60,000 acres to Col. Wakefield, the agent of the New Zealand Company, in 1840. The Waikato now put in a claim to the district as conquerors, whereupon, in 1842, Governor Hobson, through Mr. George Clarke, Protector of the Natives, bought up their claims by purchasing, not the mana or "tribal right," as abstracted from the usufructuary right of occupation, but "the land and all things that are on or under this land." (Ibid, p. 170.) In June, 1844, Mr. page 5 Spain (the Land Commissioner) confirmed Col. Wakefield's purchase, but two months later, in August of the same year, Governor Fitzroy set aside Mr. Spain's award, except so far as regards 3500 acres, in favour of the absent members of the Ngatiawa, great numbers of whom were soon re-established in their ancient possessions—Wiremu Kingi, with a party of 587 souls, returned from Waikanae, in April, 1848. (Parl. Papers, Jan. 1850, p. 204.)

It might be argued, according to established New Zealand usage, that inasmuch as the Waikato confessedly did not occupy (except to a most trifling extent,) the district they had conquered, their right as conquerors did not accrue. It might also be urged that on every principle of equity, as well as on a fundamental principle of feudal tenures, the rights of the returning refugees would be restored to them under their original title;* especially when brought back under British protection. But we are not left to draw conclusions of a general nature. These are completely superseded by the action taken by Governor Fitzroy. Mr. Spain's award was grounded on the principle of recognising a title in "actual occupiers" only, to the exclusion of that of absentees. The Governor was guided by the opinion of Mr. Clarke, supported by numerous precedents, "that the New Zealanders do not forfeit their territorial rights by being carried into captivity." The remainder of this important transaction is thus narrated by the Governor himself:

"On the 3rd of August, a large meeting of English and natives were assembled at New Plymouth to hear the final decision.

"The Governor informed the assembly that he did not take the same view of the question as Mr. Commissioner

* Blackstone's Commentaries, vol. iii. pp. 21, 228, Stewart's Edition, 1854.

page 6 Spain, and that he should not confirm the award of that gentleman. . . . On points of law, especially the law of New Zealand, considered with reference to national laws in general, authorities might differ without prejudice to the opinion of either, but it was for him, the Governor, to decide.* He would immediately cause further investigation to be made as to the various claimants to particular portions of land. He would then endeavour to make special arrangements with those claimants, and he would allow, in all their integrity, the claims of those of the Ngatiawa tribe, who were not parties to the sale in 1840."—(Mem. by Governor Fitzroy, Parl. Papers, June, 1845, p. 101.)
The words, "in all their integrity," guaranteed to the natives, the permanent possession of their lands, with all the rights attendant upon such possession, and upon the position of each in the tribe. The words are the more significant, in that Governor Fitzroy had previously referred to the Waikato, as having had their right of sale acknowledged by Mr. Spain, conjointly with that of the remnant of the Ngatiawa.

* The Commissioners were appointed to "hear, examine, and report," upon such claims as were referred to them. It was explicitly provided that the Governor should not be held obliged to make grants recommended by the Commissioners, "unless his Excellency shall deem it proper to do so." (Land Claims Ordinance, June, 1841. Parl. Papers, Feb. 1842.) Mr. Spain says that in announcing his decision, he "most carefully explained that the same was subject to confirmation by" the Governor, "and could not be carried into effect without his approval." (Parl. Papers, Apr. 1846. p. 60.)

This however, is inaccurate. Mr. Spain allowed Col. Wakefield's purchase from the remnant of the Ngatiawa on the spot, as against the exiled members of their own tribe, and remarks that no claim was brought forward on the part of the Waikato. This, he adds, may be accounted for by the contents of a letter from Governor Hobson, put in by Capt. King. In this letter the Governor simply mentions the purchase. (See Pari. Papers, Apr. 1846, pp. 133, 67, 70.) The payment to the Waikato, in fact, seems to have been mere hush money. (Rep. Com. House of Com., 1844, p. 113. Parl. Papers, Aug., 1842, p. 188.) It is not easy to see how the right could reside both in conquerors and conquered. The claim of the Waikato, how ever, whatever its value, was clearly barred as against themselves, by he sale to Mr. Clarke.—The Waitara valley is beyond the boundary of the 3500 acres, awarded to the Company by Governor Fitzroy.

page 7 He sets aside therefore, the consequences of both sales (except so far as regards the 3500 acres), in favour of the absent Ngatiawa.

Governor Grey would gladly have upheld Mr. Spain's award, but he felt the "matter to be beset with difficulties, and complicated in an extraordinary degree," Having, however, been instructed by Mr. Gladstone, the Secretary of State for the Colonies, to do his utmost to procure for the New Zealand Company the block awarded to them by Mr. Spain, he attempted a compromise (March, 1847), "to evade, as far as practicable, the various difficulties which had arisen under these conflicting circumstances." His scheme, which was far from acceptable to the natives, and only partially carried out, was based on the principle of "re-purchase." This he considered had been rendered necessary by Governor Fitzroy's proceedings, and while professedly refusing to admit the ownership of those who would not assent to his arrangement, "he thought proper," says Mr. Richmond, "(probably on grounds of policy) to acquiesce in the assertion of proprietary rights by the ancient occupants; and the precedent thus set has been followed by his Excellency the present Governor." (Memo., May 25, Parl. Papers, Dec., 1847, p. 13.)

Again, in a Memorandum on the Affairs of Taranaki, transmitted to the Colonial Office, November 19th, 1855, the present Governor, without any reservation, designates Governor Fitzroy's decision as "just" and "very politic." (Parl. page 8 Papers, July, 1860, p. 177.) Moreover, the very purchase of Teira's land is in itself a waiver both of the right derived through Mr. Spain's award and of that through the Waikato, for this latter right, if valid at all, was valid for the land and everything on and under it. (See above, p. 4.)

But it is said that Wiremu Kingi had previously alienated his right to the Waitara; and in proof of this, the Colonial Government have published a Deed of Sale, dated Nov. 8, 1839, which was signed by him under the name, E. Witi, for himself and his father, and which embraces within the specification of its boundaries, the block now sold by Teira. This point, therefore, requires some explanation.

The deed upon which Mr. Spain made his award in favour of the Company's purchase at Taranaki, was dated Feb. 15, 1840. To this Kingi was no party. That which he did sign belonged to the previous year, and was one of two deeds of general cession, nearly coincident both in date (Oct. and Nov. 1839) and in the territories assigned by them to the New Zealand Company. (They are printed in Parl. Papers, Apr., 1846, pp. 109 and 113.) Mr. Spain describes them "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.'" (Parl. Papers, Apr. 1846, p. 36.) The lands ceded by these deeds comprise portions of the middle and northern islands described as lying between the 43rd parallel of south latitude, and a line drawn from Mokau (about 38° S.) on the west, to Tahukakore (about 41° S.) on the east coast of the northern island. In reference to that signed by Kingi, Col. Wakefield told Archdeacon Hadfield "that he never had any intention of taking possession of any land under it, and it was only intended 'to throw dust in the eyes of the Sidney land-sharks,' that he might keep them away, or that if they came he could assert page 9 a primary claim to the land, which would invalidate any other claim." (Archdeacon Hadfield's Evidence before the House of Representatives, Aug. 14.) From the minutes of the Land Commissioners' Court, held at New Plymouth June 5, 1844, it appears that no issue was raised upon this deed in behalf of the Company, when their claims in that district were formally under consideration, (Parl. Papers, Apr. 1846, pp. 50, 68) and the Commissioner himself "distinctly informed "Archdeacon Hadfield" that when he looked at the deed he treated it as waste paper, and that there had been no award made under it." (Evidence, Aug. 14.) Moreover, both deeds of general cession were virtually set aside by the arrangement with the Imperial Government, under which the Company was allowed one acre for every five shillings expended in land purchases and promoting emigration, (Parl. Papers, May, 1841, p. 86) and which ultimately reduced their claim from 20,000,000 to about 1,000,000 acres, the actual assignment of the land being subject to further limitations as to locality, and to the adjudication of the Land Commissioners and the Governor. It may be doubted whether Kingi understood the real nature of the document he signed, for Waikanae, at which place he was then residing, is included in the land sold to the Company, and the date of it nearly coincides with that of his father's injunction not to sell the Waitara (See p. 37). At all events, he may justly consider himself as discharged from all obligations then incurred, by the general disregard of this singular conveyance, as well as by the more formal and decisive action of Governor Fitzroy respecting the Taranaki land above adverted to, nor can it, at this distance of time, be revived against him. The anxiety evinced by many of the Ngatiawa in 1839, to secure an English settlement at Taranaki, arose out of their belief that they would thus be page 10 enabled to return to their old homes without fear of the Waikato. (Mr. Spain, Parl. Papers, Apr. 1846, p. 52. Col. Wakefield, Rep. Com. House of Commons,1844, p. 629.)

Applying to the case the principle laid down by Lord Grey in 1847, to maintain rights "already recognised," (Parl. Papers, Dec., 1847, p. 84) it is impossible, consistently with good faith, now to set aside or subvert the formal decision of a former Governor, or to plead claims, in their origin of doubtful validity, and repeatedly waived.* A "just "as well as a generous policy cannot be reversed when time has added the right of prescription to its original solidity.

The claim through previous sales being thus barred in equity, and by express and public compact, the tribal right within the valley of the Waitara has not been extinguished; and it cannot be extinguished, if Kingi's claim be good, unless by his consent, express or implied. It is necessary, therefore, to consider—

(2.) Kingi's personal claims as Chief—

a. He has always been acknowledged as such by the authorities and other Europeans.

He was looked upon as the leading man among that por-

* The Despatch quoted in the text was explanatory of principles set forth in the Instructions which accompanied the Charter of 1846. Lord Grey adds; "The Protector of the Aborigines is there directed to inform the Registrar respecting all lands within his district, to which the natives "either as tribes or individuals," claim either proprietary or possessory title, that all such claims shall be registered; and that wherever it shall be shown either that such lends have been actually occupied by the natives, or that the ownership to such lands, although unoccupied, has been recognised by the executive or judicial authorities to be vested in the natives, such claims shall be finally and conclusively admitted." These Instructions and the Despatch covering them were unfavourable to the native title, and created no inconsiderable excitement in the colony. Yet they quite meet the case of the Taranaki land dispute, and require that Governor Fitzroy's decision should be regarded as final. (See the Instructions, Parl. Papers, Jan. 1847, p. 85.)

page 11 tion of the tribe settled at Waikanae in 1847. (Parl. Papers, Feb., 1848, p. 17.)

His birthright is not denied by Mr. Richmond :—"Possibly ... his birth might have given him the command over the tribe, which he pretends to exercise;"—Mr. Richmond's plea being that this birthright has been forfeited by the circumstances of his re-establishment at Waitara. (See above, p. 5.)

Again, Kingi's name perpetually recurs as a leading chie in the correspondence respecting the Taranaki feuds in 1855.

"At the Waitara River . . . I found William King, one of the principal chiefs of the district." (C. L. Nugent, Major, 58th Regiment, Native Secretary.)

The Rev. W. W. Turton (Wesleyan Missionary) says :—" William King and his tribe have joined all their energies and resources, &c."

The resident Magistrate, Mr. J. Flight, speaks of "the Waitara natives under Wiremu Kingi,"—and again of the attempt of "the Ngatimanui," (a distinct tribe) "and Wiremu Kingi "—employing the name of the chief for that of his tribe. (Parl. Papers, July, 1860, pp. 74, &c., 132, 133, passim.)

b. And by the Taranaki natives generally.

The Rev. J. J. Riemenschneider, (no friend to W. Kingi' whom he stiles—whether justly or not is not the question here—" a wily man," and a "notorious" chief,) in a letter to the Chief Land-Purchase Commissioner, dated Sept. 24th, 1855, testifies that the Taranaki natives say of him, "he is on his own land, being the real and true chief of Waitara." After pointing out, in words of prophetic warning, the danger, as estimated by the natives, of coercive steps against either one or both of the two chiefs, Katatore and Wiremu Kingi, he adds :—" In the course of my listening to their long 'koreros, page 12 and of my occasionally arguing with them about the various points, I observed that it appeared to me there was much reason to believe that Wiremu Kingi had, properly speaking, no land and no claims of his own to the lands at the Waitara, on the south side. With much evident surprise they (the Taranaki), looked and asked me where then his lands and his claims were if not there, since he was the rightful and principal chief of the Waitara.

"When I further reminded them that W. Kingi had no right either to hold or to occupy land on this (south) side of Waitara river, since in 1847 he had given his distinct promise to Governor Sir George Grey, previous to his coming up from the south, that he would not settle on this side,* but on the opposite (north) banks of the river, I received in reply, that W. Kingi being the head chief of all Waitara, on both sides of it, it was for himself to choose and to say on which side and on which spot he was to reside. In fine, the Taranaki natives seem to scorn the idea of having that personage set down as merely a second or third-rate chief, and as being possessed of only a nominal right and claim to the Waitara lands which he holds and occupies." (Parl. Papers, July, 1860, pp. 170 seqq.)

Kingi's name, (E. Witi) stands first in the list of Ngatiawa signatures to the Queen Charlotte's Sound deed of Nov. 8, 1839. (Parl. Papers, Apr., 1846, p. 111.)

In a native letter from some members of the tribe, written since the outbreak, they say : "We had no doubt or anxiety about our lands—we had no fear that we should lose them, because we were distinctly informed of William King's de-

* Such a promise could not affect Kingi's right as chief, which was personal, had followed him to Waikanae, (see p. 37), and would follow him wherever domiciled. In a list of the returning Ngatiawa, made out by Mr. McLean in April, 1848, the names both of Kingi and Teira occur as intending to settle at Waitara. (Parl. Papers, Jan., 1850, p. 205.)

page 13 termination to keep possession of our lands—he being the chief to protect our lands there." (Fox's War in New Zealand, App., p. 57.)

Wiremu Kingi, then, enjoys at the least the presumption of right arising out of that "notoriety of possession" which, in the absence of other proof, was admitted by the Common Law of England, "as equivalent to the formal grant of seisin."* Intestine strife can be no new thing in the interior of a New Zealand tribe : but Mr. Richmond's assertion cannot be accepted without further investigation, "that King's right to dictate to them is not recognised by the principal men of the Ngatiawa," whether "in Taranaki" or elsewhere, and that too, at a time when they have shown the contrary, by rallying round his standard.

The question assuredly demands a more sifting inquiry than has hitherto been given to it.

Again, if not the paramount chief of the Waitara, Kingi's position would seem to be at least such as to render his assent essential to the completion of a valid purchase; and the Governor has clearly departed from the wise and cautious principle laid down by himself in 1855 : "I have disapproved of Mr. Cooper's conduct, in commencing a survey, before he was assured that all who had even a disputed claim to the land, desired it should be sold, and have declined to make a demand for reparation, which could only be enforced at the expense of a general war, including sooner or later all the tribes in the northern island." (Parl. Papers, July, 1860, p. 177.)

The opinion of a person of Mr. Clarke's antecedents, must carry with it great weight on a subject of this nature. It is this :—" We never considered a purchase complete,

* Blackstone's Commentaries, Vol. ii, p, 280, Stewart's Edition, 1854.

Appendices E. and F.

page 14 until all parties having claims, or pretended claims, were satisfied. The same rule was adopted by Commissioners Godfrey and Richmond in reference to European purchasers (as distinguished from purchases by the Government). Had such a chief as W. King objected to a purchase, or a chief of much less note, it would have been rejected by them immediately. Apply this rule to the present pretended purchase of Government. * * * * I should have objected to any purchase where such an influential Chief as W. King opposed the measure, or even hinted at an objection, and there is no tribunal at which such cases could be decided, but that of the chiefs; and, after all, no decision would have been valid, without convincing King, and having his assent to the purchase.—Mr. George Clarke, formerly Protector of Aborigines, and Head of the Land Purchase Department for many years; in a letter to Mr. Carleton, July 25th, 1860." (Fox, p. 24.)*

* Appendix G.