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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

VIII. Mr. George Clarke, formerly Chief Protector of Aborigines.—1844

VIII. Mr. George Clarke, formerly Chief Protector of Aborigines.—1844.

If, as is the general impression of all who have given their attention to this subject, the Natives emigrated at different periods, we have at once a clue to the origin of titles. Each migration landed, subdued, and laid claim to a certain district now claimed by their posterity. Each party would most probably acknowledge a leader, either nominated or assuming such character by virtue of superior prowess, who would actually be considered as the first chief of the iwi or tribe. His children, with a, portion of the iwi or tribe who might attach themselves to each particular child, may be considered as giving rise to the different hapu or lesser tribes. His children and those who attached themselves to them formed different hapus, who, although a part of the original family, would form a separate and distinct community, uniting, however, in times of war to repel the common enemy, but claiming and exercising independent interests in the soil in times of peace…..

Bravery in war, and consequent power and rank as a chief, will not determine the individual to be a great landowner. A man may be a great general and a small landowner; hence numberless mistakes have arisen among Europeans who thought themselves especially safe in purchasing land from a powerful chief…..

The chiefs of every tribe or hapu, as well as the head of every family belonging to the tribe or hapu, have distinct claims and titles to land within their respective districts. At the same time it must be remembered that they have a joint interest in many of the lands. The particular claims of the chiefs, hapu, or families are to lands either subdued or brought into cultivation, or upon which they have exercised some acts of ownership—as lands where they have been accustomed to procure flax, or erect weirs for eels, or where they have built a substantial house. In such cases they claim a particular property. None but the person so claiming can give a title to the land, nor can he be dispossessed thereof. He may forfeit his right by killing, adultery, or migration to a different tribe and district…..

In this way families hold and cultivate their ground, enlarging their individual cultivations from time to time, thus establishing an indisputable title to such lands as their special and particular property. In other respects their title is more general: the hapu and families claiming in common with the principal chiefs what may be termed their waste lands. But even here they must be able to substantiate some sort of title, such as having been the first discoverers, kindled ovens, built canoes, or exercised some other act of ownership which gives them the preference over such lands. The families have, in common with the chiefs, the right of keeping pigs, gathering flax, snaring pigeons, catching rats, ducks, digging fern-root, &c.; every individual of the tribe having these privileges in common, but still acknowledging the right of some particular family or individual member of a family to dispose of such property—that is, as president, head of the family, or chief of the tribe or hapu, to make the first proposal of alienation; yet they could not consider the purchase valid without the consent of the majority of the principal men of the tribe.

Lands that are thus possessed in common, involving the interests of so many claimants, are exceedingly difficult to purchase, and may be reckoned as among the most fruitful sources of their quarrels and disturbances. It frequently happens that two Natives, equally interested in the same lands, disagree on the question of its disposal. Numberless animosities originate from this source…..

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To obtain a specific title to lands held in common, there must be some additional circumstances to support the pretension: first discovery of trees, shooting pigeons, constructing eel-weirs, digging fern-root, making a road, receiving a wound, losing a friend, recovering from sickness—all or any of these acts give an undeniable right to special property in land heretofore considered common…..

Conquest, unless followed by possession, gives no title. Were the Ngapuhis to claim the right of selling or exercising the sovereignty over the districts of the Thames, Kaipara, or Waikato in virtue of their former conquests, their pretensions would be treated as contemptible and absurd: and so distinctly is this principle recognized that I have no doubt that any attempt to support and maintain the validity of titles derived from conquest only, would be met by a most determined resistance, even if attempted by Her Majesty's Government. I have known slaves tenaciously maintaining their territorial rights while in a state of captivity; but I never knew a master to claim by virtue of his slave, or attempt to advance any pretensions founded on the capture of a landed proprietor. I have had large offers of land for sale by Natives still in captivity, and have been warmly reproved by these men for doubting the validity of their title.

Great changes have taken place in the internal regulation and division of districts, and lands have completely changed owners; but in every case possession has followed immediately on conquest. The claim to Taranaki preferred by the Waikatos is good so far as they have taken possession; but they did not wholly succeed in driving the Natives out of that district, who maintained their independence by resorting to different pas on the coast. I should therefore consider the principal right to land in the Taranaki District still vested in the original inhabitants. Again, the titles of the tribes about Port Nicholson to land in the Taranaki District cannot be wholly extinct if they have kept up a friendly intercourse with the residents. Rauparaha, who conquered and took possession of parts of this country, would, in connection with his followers in the vicinity of Cook Strait, have large claims; but his title would no doubt be disputed by the original proprietors so soon as they were in a position to maintain their claims. A tribe never ceases to maintain their title to the lands of their fathers, nor could a purchase be considered complete and valid without the concurrence of the original proprietors. If a conqueror spares the lives of the conquered, and they thenceforth become amalgamated with his own tribe, he infallibly secures his own title by uniting the claims of the original possessors with his own.

Possession of land, even for a number of years, does not give a right to alienate such property to Europeans without the consent of the original donor of the land, but it may be continued in the possession of descendants of the grantee to the latest generation.—[Report to Governor Fitzroy: in Parl. Papers, 29th July, 1841]