THE Otago Daily Times. "Inveniam viam aid faciam." DUNEDIN, TUESDAY, JUNE 10, 1862.

Otago Daily Times, Issue 177, 10 June 1862, Page 4

THE Otago Daily Times. "Inveniam viam aid faciam." DUNEDIN, TUESDAY, JUNE 10, 1862.

Whenever, in dealing with a large question, ambiguity is allowed to creep, in, time hat increases the difficulty of dissipating the hazy mist that ambiguity is the means of creating. This process has been at hvork in the treatment of the Native question in New Zealand from, its very earliest stage. Awkward details were shirked or temporarily disposed of, and, naturally, these difficulties £have broken out in other directions'; when the precedent by which to adjust them was found wanting. It is not too much to say that, far from making any progress in dealing with the nalivea during the last sixteen years, the Native question was then more easily to be disposed of by the adoption of proper measures, than it is at the present day. \Ve quote clause 11 of the New Zealand Government Act of 1846, by which it will be seen how matters whichv were then supposed to be of only a tempo ran' nature have since]degenerated into chronic affections: — And wherein it may be expedient that the laws, custom?, and usages of the aboriginal or native inhabitants of New Zealand, so far as they arc notrepug. nant to the. ycnerul principle:; of humanity, should I for the present be maintained for the government of themselves in all their relations to, and dealings with, each other; and that particular districts should be set apart w!ll:in which such-laws, customs, or us;iges should be so observed :be it enacted, that it shall be lamfiil ftir h-.;i' Majesty, by any such letters patent as afiirpsaid. to make provision for tlin purposes aforesaid, any ivmigniuicy of any sue!) native laws, customs, or usiiges to the law of England, or to any Jaws statute, or usage in force in the said Islands of Now Zealand, or hi any part thereof, in anywise not- • withstanding.

Here we sec that the very nature of the clause supplies the deduction that the English Crown assumed the power of tolerating or disallowing native laws accordingly as expediency directed. Since then flimsy pretences of vested rights have been allowed to grow up, born of the disinclination to use powers which sixteen years ago the Crown did not foil to assert. And now we absolutely hesitate to claim authority which sixteen years ago it was boldly stated was only for " the present" allowed to slumber at the dictates of expediency. The discretionary nature of the clause is to be read in every line. What would the statesman who read it in that day, and who must liave noticed the merely temoprary nature of the claims it permitted—what would he say to find that now upon a larger scale, without any discretion, we are introducing the institutions'that serve to. draw more prominently the line of demarcation "between the European and Native races ? What would he say, still further, when he was told that the British Crown is even unmindful of the saving clause, " not repugnant to the general principle of humanity ?" Yet, so it is, we tolerate in the- natives that which outrages humanity.

Whilst the British Crown" expends countless I thousands of pounds and hundreds of lives in i repressing the African slave trade, we yet permit the institution of slavery amongst the Maories. It is well known that they have not abandoned this recognised institution, and within three days sail, in thu Chatham Islands, a whole ruce of miserable beings is permitted to exist in cruel and -abject slavery to Maori taskmasters. Again, is it not repugnant to humanity, that British subjects should be permitted to kill one another about disputed titles to land? Can we not supply tribunals competent to adjudicate such disputes, is it not a mockeiy of every principle that Britain piv tends to, that its subjects should be permitted to shoot one another, and range themselves in hostile array to try the justice of tides to laud ? This spectacle we are now •witnessing, and we have yet to learn whether Sir George Grey will interpose the strong arm of the law, to declare every man who kills another in the unholy struggle a murderer, whether he will not at once decide as to the title, and place the rightful owners in possession. But, say the favorers of vague Maori rights, tills is a matter in which we have no right to interfere. Here, again, a mist of obscurity has been suffered to grow up. We have the right to detil with the question that we possessed sixteen years ago, and when we find that the power of deciding on native titles was then absolutely claimed, are we to allow that we have waived that right because we have permitted it to slumber ? Here are extracts from the instructions Jsent out in 1846 for the management of the Waste Lands of the Crown, by which it will be pei-ceived we not only claimed th- right to deal with Maori titles, but absolute ■••-• to compel them to prove them on pain of forfeiture: — Clause I.—Charts of .the New Zealand Islands shall be prepared with all practical expedition and accuracy, and especially charts of all those parts of the said islands, over which the aborignal natives.or the settlers of European birth and origin, have established any valid titles, whether of property or occupancy. Clauses. —In every district into which the'said Islands shall be divided, in pursuance of these our instructions, sh.ill be kept a registry of the lands therein situate,.distinguishing, with reference to such charts as aforesaid, the settled lands in such district from the unsettled lands therein. Cause 3.—At the capital town of each of the provinces of New Zealand shall also be kept a General' It<';:utry of the settled and of the unsettled lands in that Province with reference to such charts aforesaid.

Clause 0. —The protector of the aborigines or any officer appointed to act in that capacity by the Governor or Lieutenant Uovernor of the'Proviace, shall, in like manner, transmit to the Registrar of the District a statement of the extent (as nearly as it can be asc.rtained) and of the locality of all the lands situate within the same, to which any such natives, either as ttit>os or as individuals, claim either a proprietary or a possessory title, which claims shall also be forthwith provisionally registered.

Clause 0. —Al! lands not so claimed or provisionally registered by the time so to be limited as aforesaid, shall thenceforward be and be considered as vested in us, and as constituting the demesne lands of usin right of our Crown within the New Zealand Islands.

Clause 0. —No claim shall be admitted in the said Land Courts, on behalf of the aboriginal inhabitants of New Zealand, to-any lands situate -within the said islands, unless it shall be established, to the satisfaction of such Court that either by some Act of the Executive Government of New Zealand, as hitherto constituted, or by the adjudication of some Court of competent jurisdiction within New Zealand, the rigi-i of sucb. aboriginal inhabitants to such land has been acknowledged and ascertained, or that the claimants or their progenitors, or those from whom they derived title, have actually, had the occupation of the lands so claimed, and have been ascertained to use and enjoy the same, either as places of abode, or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentatiou of life by means of, labor expended thereon.

Ten years afterwards Mr. Sewell claimed the same power of dealing with native titles, and pointed out the imperative necessity of using it. Here is an extract from his Ministerial Statement in 1865 : —

Intimately connected with the purchase of native lands is the question, " Whether the natives should not, to iio;ne extent, be placed on tiie same footing1 wiih Europeans as regards' individual titles?" In t'.is neighbourhood of settlements, and throughout the colony, tiiey have cultivated and improved their lauds, placing themselves on an equal footing with improving settlers. Can we refuse to give them individual titles, clpthed with the ordinary privileges of ownership over such lands 1 I think not, (hear); and, indeed, it has always appeared to me that this was one of the first steps tp raise their condition, and to teach them the value of our institutions. How can we expect them to understand and appreciate tiie value of our institutions until we give them the rights which those institutions are made to protect.

Iv.arly the whole of the difficulties with the natives are occasioned by thy disputes which arise concerning their titles to land. Attempting to meet these difficulties, without touching upon the cause that produces them, is assuredly most empirical treatment. It may be safety asserted that the Native, difficulties can never be settled beyond a mere temporary adjustment, until the native titles to land be decided, or.rather, we should say, until the means for deciding them be afforded. There are three different modes by which the decisions of titles might be attempted. One, as proposed in 1846, but which was not acted on. making it imperative on the natives on ;min of forfeiture to come forward and prove their titles ; one affording them the red: ess of a competent tribunal, on the application of any one party who deems he has a claim to make good ; and the third, affording the same redress, but only upon the application of all parties concerned. 'The first, whatever might- have been its policy years ago, wli m we had the right to ask to be put in possession of the claims to titles which we were expected to recognise, would be harsh, and, indeed, impossible now. The third system is already in some sort provided for by existing statutes; but obviously it is unworkable, inasmuch as it is only another form of voluntary arbitration, the which those possessing doubtful claims would not be prepared to submit to. The second would answer all the purposes required, whilst it would be free from the hardships of the first, and wanting in. the features that completely nullify the f.hird.

It would in fact be the mere adoption of a tribunal, similar in many respects to that which effected such marvels in Ireland 'under the Encumbered Estates Court. Introduced

amidst much opposition, and with the loudly expressed opinion that it would be found unworkable, this Court effected more than its most sanguine conceivers eyer dared to hope from it. Nearly one-third of the whole territory of Ireland changed hands under it, and the peasants and tenantry, who first desperately opposed it, have lived to bless the measure that lias given them wise and liberal landlords instead of ruined squires, and that has released them from squalid misery to place them in a happy and prosperous condition.

There are two main features of the Encumbered Estates Court which will prove most serviceable in New Zealand—the utter irreversibility of its decrees, and the power of putting its machinery in motion by any person assuming to possess a claim. Instead of declaring the land for sale, it would give a conveyance to the claimant whose title it considered proved. The arguments that would be used against the adoption of the system, are first, that the natives would not use it; and, secondly, that they would not submit to its decrees; both of which we take would prove as fallacious as similar arguments used against the Encumbered Estates Court. Sir J. Walshe, referring to the action of the latter, said "they might sell and sell, but who would buy"? " About as absurd," he added, " as to put a house actually on fire up to auction." But when, after the first sale or two, the absolute nature of the titles was made made apparent, the sales of the Court were crowded with bidders. The first Maori who deems he has a claim to assert, but which he is not strong enough to enforce, will ensure the success of the tribunal. He will seek the assistance of the Court, due notice will be given, calling on those who oppose his claim to put iv au appearance. Let us suppose the" strong opponents refuse in scorn to do so, the applicant gets a conveyance, unimpugnable by any after process. Out of many thousands of cases, two instances of palpable injustice were committed by the Irish Estates Court. ' In one they conve}'ed away laud over which they had no jurisdiction ; in the other they paid money to the wrong person. Action was taken, and the case (the first alluded to) went up to the Lords. People trembled, they had invested eighteen millions on the faith of the absolute nature of the titles, and if one were disallowed the whole wou]d be liable to dispute. ■ But the House of Lords affirmed the judgment ol the Courts below as to. the irrevocable nature of theconveyancesgranted by the Court. And so two persons inadvertently suffered, whilst thousands secured benefits.

Say then, that'the first judgment of the Court on Maori claims was open to donbt, owing to . all the claimants not putting in an appearance, experience would soon teash anothefcour.se. The jtfatives arejquitc shrewd enough to appreciate the value of a European title and to know that sooner or later it inn =t assert itself. They would soon (sulkily perhaps) submit in reply to-a complaiut whatever title they deemed they possessed, possibly they would not equally readily submit to the decree. Here " lies' the rub," the decision of the Court would pro ■ bably have to be enforced against armed resistance. Even so, would it not be better, if war must be, that we should' fight for the natives, whose just claims were endeavored to be defeated against the natives who endeavor to defeat them ? Would it not be better that we should fight in the cause of enforcing the decisions of a competent tribunal, than to fight as hitherto, about, titles which have not been adjudicated on by competent tribunals ? Why was reproach cast upon the last war? Simply because we fought for a.,.»title the validity of which was not sanctioned by a legal tribunal. Let but one .'claim of the' court he enforced, and within" ten year 3 there would not be an acre of'land held by the Maories without a European title.