Untitled

New Zealand Spectator and Cook's Strait Guardian, Volume II, Issue 80, 18 April 1846, Page 1 (Supplement)

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 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. Clarkes 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 hsing 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 gratuity, and not as a matter of right, so far as the natives of Massacre Bay are 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 lo an extraordinary confirmation, as exhibited in the conduct of Capt 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 have shewn in former communications on the subject, that the territory sought to be affected by that transaction was as enormous in extent as the claim which was advanced under it was preposterous in principle. I have shewn that land 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 occupants, it was conquered by the extermination or captivity of its 01 iginal proprietors. I have shewn 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 maybe divided into three classes — Those who seized on and had retained possession of portions of the conquered tei ritory — 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 bad never been in the remotest degree parties to — many of them never heard of the transaction by which the land they dwelt on, the 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 maintained upon the strength of the mere satisfaction of the claims of the selfstyled 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 reoccupy their land on sufferance — in all cases the residents and i they alone have the power of alienating any land, j 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 expedition in paying over again (for , such was the real state of the case) the actual residents whom h6 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 kast 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 Col. 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 Col. Wakefield, a curious coincidence it may be remarked with his evidence given nearly three years afterwards, wherein Taitapu in Blind Bay forms the solitary exception to his denial of any sale of land to the Company's Agent. Rangihaeata 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* shewing the land snrveyed and required there, he attempted no proof of its purchase, and made no reference to the subject when Mr. Clarke 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 Rangihaeata of the sale, the absence of any ptoof by Col. Wakefield of its purchase, or of Captain Wakefield's 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 included in the down 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, ajs 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 overran. 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 overrun the whole coast line of the Northern Island, dcs- J troying, leading captives, or driving into their mountain fastnesses the denizens of the soil from Kawia along the seaboard nearly to Hawke's Bay ; seizing upon the Islands in Cook's Straits, and extending their conquests to the shores of the Middle Island, making frequent efforts to subjugate the tribes along | its Eastern coast as far as Bank's Peninsula, which to this day bears marks at Akaroa, of I the incursions of these ferocious conquerors ; and sometimes carrying the war, though with less success, into their enemies' country, as" far South as Foveaux Straits. J From Taranaki to Wattganui 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 precipitous cliffs, whither their enemies found it impossible to pur- i sue them. At several places immediately to the South of Wangattui, 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 op- j pression — while in the Middle Island the tribe Rangitani, the original occupants, is reduced to a mere reranant,f living in the interior, without any fixed dwelling places, and

* No. 5. A Plan of Wairau. f See E. J. Wtkefield's eridcnce.

I 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 Col. 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, Wakanae, 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 tbe rights and interests of the resident natives. The various districts then in the real and hona 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; 1 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 original 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 on 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's Strait, bearing always in mind the principle of native property in land which I have above endeavoured to explain. But your Excellency will also observe how the refutation of the rights claimed by Rauparaha to dispose of lands which he has cdnquered, but which he he has never been able to retain and cultivate, becomes an argument in favor of his legitimate and equitable property in all lands which it can be shewn 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 Col. Wakefield was there,) "He (Col. Wakefield) then told me to collect Rangihaeata and oihers 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 Col. Wakefield to Wairau, is unnoticed in his evidence or in that of Mr. Edward Jerningham Wakefield, or Brook. I have already Stated that Rangihaeata acknowledged at the same time that he sold only Wakatu on that occasion to Col. Wakefield, positively denying the sale of- any other land whatsoever. From the only evidence, then, which has be6n taken oil the subject of Wairau, and dvdti that arose incidentally, it is impossible that any other Conclusion Can be drawn than that at whidi I have arrived and recorded above as my deliberate judgment. We have seen the Admission bf the Sale of two places. Taitapu 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 iustances 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 two other 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 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 given 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 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 testimony ; and it is worthy of remark that the evidence of Hiko and Tutakanga, also signing parties to the* same deed, is precisely to the same effect; though taken at Pukirua 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 iv any 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 investigatingand 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 one hundred and fifty-one thousand acres of land, situate, lying, and being in the several districts of the settlement of Nelson in the Southern division of Nevv Zealand, which said districts are divided as follows : That is to say— Wakatu or Nelson district, eleven thousand acres already surveyed ; Waimea district, thirty-eight thousand acres already surveyed ; Moutere district, fifteen thousand acres already surveyed ; Motueka district, forty-two thousand acres partly surveyed. The remaining quantity required to be selected from the portions of land colored red in the plan No. 1 herewith annexed, and hereinafter more particularly referred to ; and Massacre Bay district, forty-five thousand acres partly surveyed, the remaining quantity required to be selected from the portions of land colored 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 of the New Zealand Company,and which said lands are more particularly described and delineated upon the accompanying plans marked No. 7 f saving and always excepting as follows : J 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 tne pas to be the ground fenced in around their native houses, including thd 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 all the native reserves upon the plans hereunto annexed, marked No. 1 a,\\ No. 1 J,^[ colored green ; the entire quantity of land so reserved by the natives being one-tenth of 151,000 acres hereby awarded to the said Company: And also excepting any portions of land within any of the lands hereinbefore described, to

* No. 6. Schedule of Land required for the Nelson Settlement. t No. 7. PUn No. 1. X This is the exception agreed upon at Major Richmond's on Monday 29th Jan. 1844. Copy of the minutes of which forms enclosure No. 1. in final Report on case, 374. || No. 8. Plan No. 1. a. \ No. 9. Plan No. 1. b.

private claimants have already or may hereafter prove before the Commissioner of Land Claims a title prior to the >6f the New Zealand Company. I have the honor to be, Sir-, Your Excellency's most obedient Servant, (Signed) Willm. Spain, Commissioner. (True Copy.) S. E, Grimstone, Secy.