OWHAOKO AND KAIMANAWA NATIVE LANDS (MEMORANDUM ON, BY THE HON. R. STOUT).

Appendix to the Journals of the House of Representatives, 1886 Session I, G-09

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1886. NEW ZEALAND.

OWHAOKO AND KAIMANAWA NATIVE LANDS (MEMORANDUM ON, BY THE HON. R. STOUT).

Presented to both Souses of the General Assembly by command of His Excellency.

In the matter of the Kaimanawa-Oruamatua Block, of 115,100 acres; the Owhaoko Block No. 1 (School Eeserve), 28,601 acres; the Owhaoko Block No. 2, 181 acres 1 rood 16 perches; and the Owhaoko Block, 134,650 acres.

The Minister of Native Affairs has referred to me a large mass of papers, with minutes of the Native Land Court, <&c, concerning these blocks. Certain Natives residing on the blocks complain that they have been unjustly deprived of their land by the Native Land Court, and they ask that their title to the land should be investigated. I think it better to give a short statement of the history of these blocks, in order that it may be the more readily determined what relief, if any, the Natives who have asked for a rehearing should obtain. These blocks are contiguous, and are situated in what is called the Patea District. [Sketch-map annexed herewith will show their position.] In the year 1875 certain Natives applied to have the title to the blocks determined. The notices were gazetted on the 7th day of September, 1875, and the Court sat on the 16th September, 1875. The Native Land Court sat at Napier, Hawke's Bay. The notice in the papers is dated "Office of the Native Land Court, Auckland, 9th August, 1875," and states that Kenata Kawepo, Karaitiana te Kango, Ihakara te Earo, Te Eetimana, Aperama te Kounga, Hakopa te Hiraka, Horima, and others, claimed to be owners of Kaimanawa; and, regarding the Owhaoko Block, three Natives, Eenata Kawepo, Noa Huke, and Te Hira Oke, claimed to be the owners. At the Court held on the date I have mentioned the claims were read, the applications as gazetted being called over. The first claim was that relating to the Kaimanawa-Oruamatua Block. It does not appear from the minutes of the Court that many Natives were present; and it is of importance that the whole evidence regarding this claim of 115,100 acres should be read. Two witnesses only were examined —namely, Eenata Kawepo and Noa Huke. The following was the evidence :— Eenata Kawepo, on oath : I live at Oniahu. I belong to the Ngati-te-Upokoira and Ngatiwhiti hapus. These are hapus of the Ngati Kahungunuau Tribe. The Ngati-te-Upokoiri have lived and are at present located at Omahu. I understand the map before the Court, but have not been on the land. I have travelled over it, along the track. Myself and Karaitiana I—G. 9.

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te Eango ordered the survey. The boundaries were pointed out by Karaitiana te Eango. No person interfered with the survey. I have a claim to this block. These are the owners with me : Eenata Kawepo, Karaitiana to Eango, Ihakara te Earo, Te Eetimana te Earo, Horima te Ohunga. These are all of whose claim I am aware. I claim from my ancestors. Others Noa Huke will trace the genealogy. Noa Huke, sworn : I know this block of land. I will state what I have heard about it. The Pakaitara was the chief. He belonged to the Ngatiwhiti. He was born on this land. I know of four children ho had—Te Pokaitara, Te Aopupururangi, Tuorai, Te Mumuhu, Te "Wamairangi, Eaka Paka, Eenata Kawepo. I have been on this land. There are Natives who are not present who have a claim. The people now living on the land have a claim. About twenty people — men, women, and children — are living on the land. Three of the people are Knumatuas —namely, Matiu Taruarau—the others are included in Eenata's list. I am not aware of any fighting or dispute with neighbouring people on the land. After hearing this evidence the Court stated as follows :— That when the map which is now on the way from Auckland comes to hand—a tracing only being before the Court—a memorial of ownership will be ordered. It is to be observed that Noa Huke stated "that there were Natives who were not present who had claims to the land; that the people now living on the land have a claim." " About twenty people—men, women, and children—are living on the land." I have italicized his evidence on this point. It will also be noticed that even in the application it was stated that there were " others " beyond the names mentioned who claimed to be owners, and that Eenata omits some of the names that appear in the notice from his list. On the same day the Court had the title to the Owhaoko Blocks No. 1 and No. 2 before it. According to the minutes of the Land Court these consisted of 38,220 acres. The only evidence given regarding the ownership of these blocks was that of Eenata Kawepo and Noa Huke, who were both claimants for the land. I again give in full their evidence as it appears in the minute-book of the Court. Benata Kawepo (on former oath): This land (Owhaoko) is divided from the Kaimanawa and Oruamatua Block by the Eangitikei Eiver. I claim through my ancestors. I will leave some one else to trace my genealogy. Noa Huke: I know this land. Whitikaupeka was a man who belonged to the Ngatikahungunu. He dwelt upon this block of land. He is the ancestor through whom the claim is made. Ido not know the name of the spot on which he lived. From Whitikaupeka was Wharepurakau. We are the descendants now alive of that ancestor —Eenata Kawepo, Noa Huke, Karaitiana te Eango. There are a great many more living in Patea. We three are all here. I will give a long explanation with respect to those absent, all of whom have settled that this block of land is to be set apart for a school endowment. It is to be inalienable. That is the reason this portion has been taken from the large survey—so that the other portion may be for the people. The large block has not been investigated. It is left for the people to decide among themselves whether it shall be put through the Court or not. The evidence is given in the first person, and I have no doubt it has been minuted in full. It will be observed that, according to Noa Huke, three Natives only were concerned in this block of 38,220 acres—namely, Eenata Kawepo, Noa Huke, and Karaitiana te Eango. The fact that there were a great many more living in Patea, and that they had interests in the land, is stated; but the reason they were absent was that they wished this block to be " inalienable " and to be set aside as a school " endowment." The rest of the Owhaoko Block was to be for the people. The Judge gave his decision as follows : — I have asked if there arc any objections to your claim to this block ; and there are none. The investigation of title to this block is clear enough, in my opinion. I will send a telegram to Mr. Locke, who has had something to do with the plan, and see what can be done towards having the survey completed ; when the memorial of ownership will be ordered.

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I at present simply remark that it seems to me peculiar that a Judge should, knowing that there were other owners to the land, have, without their consent, -stated that he would order a memorial to be issued to the people present. There is nothing on the face of the proceedings of the Court to show that the Natives were served with the notices of the intention of Eenata Kawepo and the two others to bring this claim for land before the Native Land Court; nor does any evidence seem to have been taken as to the date or the service of any notices. The map that was stated on the 16th September by the Judge to be on its way from Auckland, showing the boundaries of the Kaimanawa-Oruamatua Block, seems to have arrived two days later, for on the 21st there is a minute as follows : — Tuesday, 21st Sept.— Oruamatua and Kaimanawa. —Plan produced. The Court opened at 11 a.m. Present ~.L, Place ...} The same. Order : Memorial of ownership for Oruamatua and Kaimanawa Block, 115,100 acres, ordered in favour of Eenata Kawepo, Karaitiana te Eango, Ihakara te Earo, Te Eetimana te Eango, Horima te Ahunga. The memorial was issued on the 21st day of September, 1875, for this land. So far as Kaimanawa-Oruamatua Block is concerned nothing seems to have been done further, though I understand it has been leased by Eenata Kawepo and his people, who were declared the owners. On the 14th December, 1875, Heperi Pikirangi and several others wrote letters to the Chief Judge Fenton and to Sir Donald McLean, then Native Minister, complaining of what had been done regarding their lands at the sitting of the Native Land Court. The letters are similar. The copy to Judge Fenton is as follows:— Te Einopuanga, Patea, 14th December, 1875. To Mb. Fenton, — Greeting. This is a request to you to hold a sitting of the Native Land Court to adjudicate upon our lands which were brought before the Court held at Napier. The names of the lands are, Ohaoko, Mataipuku, Papakai, Euamatua, Whangaipotiki, Ohinewairua, Oarenga, and Kaimanawa. We were too late for the first Court, the reason being that we only received the notices on the 13th, and on the 16th the Court sat. We travelled night and day, but did not arrive in time for it; and therefore we send in this application. Friend, Mr. Fenton, do you accede to this request; and if the letter reaches you answer it, so that we may be aware of your decision on the subject. This is all from Heperi Pikirangi te Hau And 25 others; rather, from all of us. Both letters state that they only received at Patea the notices of the sitting of the Court on the 16th on the 13th September, and that, though they travelled night and day, they did not arrive before the sitting of the Court had been concluded. There is nothing whatever in the papers to show that this is not the fact. Judge Fenton minutes the letter, " Acknowledge, and send forms." This was in February, 1876; and, according to the minute in the handwriting of Mr. Hammond, a clerk of the Court, the forms seem to have been sent on the 27th February. All through the papers and down to the present time the Natives have kept repeating that they only got the notices on the 13th of the Court to sit on the 16th September; and there is no minute nor anything to show but that their statement is absolutely correct. It may be noted that, regarding this Owhaoko Block, it seems to have been imagined by the Chief Judge, from the minute on the papers dated the 16th June, 1876, in Mr. Hammond's handwriting, and marked " File " in the handwriting of Mr. Fenton, that Owhaoko is an adjourned claim, and that the memorial was only authorized over the Kaimanawa-Oruamatua Block.

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Eenata and others, who had been declared owners, objected to the rehearing. This was only natural, seeing that they had obtained the land. I must now refer to what was done regarding the rehearing of this Kaimanawa-Oruamatua Block. The matter came before the late Sir Donald McLean; and after receiving an explanation from Judge Kogan, in which he stated that the Natives could have had time to appear (of this, as I have said, there is not the slightest tittle of evidence), and on it being stated to Sir Donald that, as regards the Kaimanawa-Oruamatua Block, it had been leased to Captain Birch, and that the Natives who had now claimed interests had not claimed rents from Captain Birch, he instructed the UnderSecretary to write declining to grant rehearing. Nothing more appears about this block save that in letters from the Natives they insist that the title to the block had not been properly investigated. I am of opinion that the Court ought not to have issued the certificate to this block to Eenata Kawepo and the persons named, as it was clear from the evidence of Noa Huke that there were others interested in the land, and that, a certificate having been wrongly issued, a rehearing should have been granted. The papers next show that some correspondence took place between Mr. Locke and the Native Land Court about the school reserve at Owhaoko. Sir D. McLean and Mr. Locke seem to have arranged with the Natives regarding this school reserve; and on the 3rd July, 1876, Mr. Locke makes inquiries of the Chief Clerk of the Native Land Court at Auckland as to the position of this matter. In the Gazette of the 27th June, 1876, a notice dated from the Native Land Court at Auckland is as follows : —

No boundaries are given in the notice to the Natives. The Natives were referred to a map which I suppose could be seen at the Native Land Court at Napier, about a hundred miles distant from their homes, and by a road almost inaccessible. The notice was gazetted on the 27th June, 1876, and the Court was to sit on the 25th July. There is nothing on the face of the papers to show when, if ever, this notice was served on the Natives at Patea. The next entry regarding this block is in the minute-book dated the Ist August, 1876 : " Owhaoko, 164,500 acres. Plan produced, claim read." The only evidence given was as follows:— Benata Kaiuepo sworn : I know the block of land called Owhaoko. I ordered the survey. Mr. Campion was the surveyor. Ido not know the boundaries. Ihakara and Karaitiana te Eango pointed out tho boundaries. There was no obstruction to the survey. I claim this land. My claim to this land is of the same nature as to the block called Owhaoko No. 1, that was heard at a previous sitting of the Court here. Eenata Kawepo, Ihakara te Earo, Karaitiana te Eango, Eetimana te Eango —these are all the principal owners. It will be observed that the only thing Eenata Kawepo, who was the only witness examined, stated was that his claim to the land was of the same nature as to the block called Owhaoko No. 1, that was heard at a previous sitting of the Court. This block seems, however, to have comprised the blocks previously heard ; and if his claim were the same, then it is clear from Noa Huke's evidence that there were

Names of Applicants. Name of District. .enata Kawepo. loa Huke. 'e Hira Oke. Owhaoko, near Napier. The plans of such of these lands that have been surveyed will be seen at the office, Eesident Magistrate's Court, Napier.

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people living on the land who had claims to it. It is important to notice that Eenata himself only purported to give what are called the " principal owners." It is also to be noticed that in the list of principal owners the two persons who were associated with Eenata Kawepo in making a claim to the land were omitted. There is a minute as follows :— The Court stated that, although this is a large block of land, there was evidently no objection to Eenata's claim; but, on the contrary, when objection was challenged, some person had stood up to substantiate his claim: and as soon as a correct plan was produced an order would be made— —that Eenata was to get' the land. There is added in the margin "Additional names given in by Eenata Kawepo —Noa Huke and Te Hira te Oke." So far, therefore—that is, up to the Ist August, 1876— no order was made, and practically no judicial decision given regarding this block. The next that appears in the minutes of the Native Land Court book relating to the block is an entry headed " Owhaoko, see page 136." This is on page 413 of the minute-book; and it appears in a very peculiar position in the minute-book: the words " Court adjourned " seem to have been struck out, and the entry " Owhaoko " is in different ink, and must have been written after the minute-book had been written up for Friday, the Ist December, and the words "Court adjourned" entered. There also appear on the heading of the next page the words, " Saturday, 2nd December, 1876." There is another entry of "Court adjourned" on page 414; and at page 417 there is an entry which is continued from page 414. On page 417 there is entered, — Owhaoko : No order. Map to be altered and put into Court. See next page. Now, this entry must have been made after the adjournment of the Court on the 2nd December, 1876, and some time afterwards too. And it must have been made when the Court was not formally sitting, because the Court next sat on the 20th December, 1876. One telegram appearing on page 418 is dated " Gisborne, 7th December, 1876," and is from Judge Eogan to Captain Heale. Now, as the Court had been sitting at Porangahau on the Ist and 2nd December, and as Judge Eogan had reached Gisborne, at all events, on the 7th December, it seems that these minutes must have been entered —very probably by Judge Eogan's directions—when no Court was sitting, and are therefore of no legal validity. I shall, however, have to refer at greater length to these minutes before I conclude my memorandum. After this matters appear to have rested for many months. On the 29th October, 1877, Judge Eogan wires from Gisborne to Mr. Dickey, of the Native Land Court, Auckland, as follows :— Please supply me with the names of owners for Owhaoko, large block, containing 134,650 acres. On this telegram Mr. Dickey minutes Mr. Hammond, — Please make out a list. If not too many, I will telegraph them. And Mr. Dickey then sends the following telegram : — Auckland, 31st October, 1877. Judge Eogan, Native Land Court, Gisborne.—Owhaoko No. 1 contains 28,601 acres; No. 2, 181 acres 1 rood 16 perches. No order made for a block containing 134,650 acres. Names for Nos. 1 and 2 are the same—viz., Eenata Kawepo, Ihakara te Earo, Karaitiana te Eango and Eetimana te Eango, . Noa Huke, and Hira te Oke. Mr. Dickey having stated that there had been no order for the large block containing 134,650 acres, Mr. Woon enters, at page 446, signing himself " Secretary to Judge Eogan," the following minute :— 31st October, 1877. It was ordered that a memorial of the ownership of Eenata Kawepo, Ihakara te Earo, Eetimana te Eango, Noa Huke, Hira te Oke, and Karaitiana te Eango of a parcel of land at Patea, in the District of Wellington, con-

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taining one hundred and thirty-four thousand six hundred and fifty acres, and known by the name of Owhaoko, be inscribed in a separate folium of the Court Eolls. Map produced, certified to by Mr. Williams, District Inspector of Surveys, Wellington, as a reconnaissance survey; Mr. Thomson, Sur-veyor-General, approving of same, vide telegram produced : — " (Telegram to Mr. Locke.) —The map of the Owhaoko Block sent you, and signed by Mr. Williams, is correct, and in conformity with the rules in force under ' The Native Land Act, 1873.' —J. T. Thomson, Surveyor-Gene-ral, 30th October, 1877." This minute must have been entered after the receipt of the telegram from Mr. Dickey ; and it does not appear that there was any Native Land Court properly held on the date mentioned. No notice of such a Court was gazetted, and it appears in the minutebook immediately after the 15th October, 1877, and before the minutes for the 18th April, 1878. It does not appear that any Natives were present, if the Court sat at all, when this order was made, nor that the Natives who had objected in the first instance to the adjudication on these blocks were ever informed of the various adjournments or sittings. It is also plain that if the order was made it was made on the 31st October, 1877. It is perfectly apparent, from what is entered in the minute-book, page 417, that no order up to and for some time after December, 1876, had been made ; and in the minutes of the Coitrt of the 2nd December, 187G, there is no entry whatever about Owhaoko. Nevertheless, on the 31st October, 1877, Judge Eogan signs the certificate as follows : — Native Land Acts, 1873, 1874.. District of Hawke's Bay.—Owhaoko Block.—At a sitting of the Native Land Court of New Zealand at Porangahau, in the said district, on the 2nd day of December, 1876, before J. Eogan, Esquire, Judge, and Hone Peti, Assessor, it was ordered that a memorial of the ownership of Eenata Kawepo, Ihakara te Earo, Eetimana te Eango, Noa Huke, Hira te Oke, and Karaitiana te Eango, of a parcel of land at Patea, in the District of Wellington, containing one hundred and thirty-four thousand six hundred and fifty (134,650) acres, and known by the name of Owhaoko, be inscribed on a separate folium of the Court Eolls. Witness the hand of J. Eogan, Esq., and the seal of the Court, the 31st day of October, 1877. J. Eogan, Judge. And a letter is addressed by Mr. Woon, Secretary to the Judge, to the Chief Clerk at Auckland, as follows :— Sib, — Native Land Court, Gisborne, 31st October, 1877. I have the honour to forward herewith order of Court and plan relating to the block of land named in the margin (Owhaoko). I have, &c, Edwin Woon, The Chief Clerk, Secretary, Judge Native Land Court. Native Land Court, Auckland. This certificate is clearly wrong and invalid, for on the 2nd December, 1876, there was no adjudication regarding the Owhaoko Block. And here I might stop, for I submit that no legal certificate for Owhaoko (134,650 acres) has ever been issued. On the 31st October the Judge forwarded the notice for the Gazette, which was a re-echo of his certificate ; and on the 7th November the Chief Judge, Mr. Fenton, sent the notice for publication in the Kahiti and Gazette, and this seems to have been published on the 23rd December (Kahiti No. 29). It appears from orders dated the 20th December, 1876, that the Owhaoko Blocks Nos. 1 and 2 were stated to have been adjudicated upon on the, 2nd December, 1876 ; but there is no record in the minute-book of the Court of any such decision. Two notices were gazetted on the 29th January, 1877, stating,— Native Land Acts, 1873, 1874. District of Hawke's Bay. —At a sitting of the Native Land Court of New Zealand, begun and holden at Porangahau, on the 2nd day of December, 1876, before John Eogan, Esquire, Judge, and Hone Peeti, Assessor, in the

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matter of the application of the persons for the investigation of their claims to be interested in the blocks of land named in the first column of the Schedule hereto, it was ordered that a memorial of ownership of the several persons respectively named in the third column of the said Schedule be inscribed on a separate folium of the Court Eolls. Witness the hand of John Eogan, Esquire, and the seal of the Court, the 20th day of December, 1876. J. Eogan, Judge.

These notices are wrong, for, I repeat, no such orders were ever made. Several Maoris made application for the rehearing of the Owhaoko Block. This appears in a petition by Topia Turoa and various others, stating that their land was adjudicated upon at Turanga, orGisborne, that the case was set down for hearing at Napier, and adjourned. As for the hearing at Turanga, they heard nothing of it. The petition is dated the 31st January, 1878; so that it was within a few weeks after the notice in the Kahiti of the adjudication on the Owhaoko Block. The petition was as follows (translated) : — Feiend, — Tapuaeharuru, Taupo, 31st January, 1878. Salutations to you, the parent of the Native people of this Island. This is a petition from us, praying that the case of our land Owhaoko at Ngararoro may be reopened. We have only now heard that that land was adjudicated on at Turanga (Gisborne), the case having been adjourned from Napier. As for this hearing at Gisborne, we heard nothing whatever about it, and did not see a single Kahiti. Therefore we pray that you will be pleased to have that land reopened, because we, the whole tribe of Tuwharetoa, have large interests in that land. From your friends, Topia Turoa. Hohepa Tamamutu. Perenara te Papanui. Eawiri Kahia. Te Eangitahau. Te Eehu te Keka. Te Heuheu. Paurini Karamu. Te Eehu te Keka. To the Marquis of Normanby, Governor of New Zealand. When it was received by His Excellency is not mentioned; but on the 27th May, 1878, it was forwarded for the consideration of Ministers; and was recorded in the Native Land Office on the 28th May, 1878. The petition was referred, by the order of the Acting Native Minister, Mr. Ballance, to the Chief Judge; and he minuted as follows : — Hon. the Native Minister.—There seems to be an absence of positive information about this block ; but that very fact disposes me to think that there should be a rehearing, which I respectfully recommend. On the same paper there is a minute in Judge Eogan's handwriting (it had been referred to him by Judge Fenton to report on the facts), as follows : — This land passed the Land Court at Napier without opposition. I am not able to say whether Topia has a claim or not. I know little or nothing of the boundary or the Natives. Mr. Locke, I believe, sent notices of the sitting of the Court to the applicants. I submit that Mr. Locke's opinion should be taken on this application. He knows the people, and was the District Officer.— J. Eogan, 21/8/78. It was then referred by Judge Fenton to Mr. Locke, who minuted as follows:—

Block. Area. Owners. iwhaoko No. 1 (School Eeserve) Acres. 28,601 Eenata Kawepo, Ihakara te Earo, Eefcl mana te Eango, Noa Huke, Hira te Oke, Karaitiana te Eango. Ditto. iwhaoko No. 2 (Mataipuku) ! A. r. p. 1181 1 16

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It appears to me that this letter refers to the Upper Owhaoko or Ngararoro Block. If so, I would suggest a rehearing be granted.—S. Locke, 18/9/78. I submit that these minutes dispose of any allegation that the Natives had had a full opportunity of being heard in the -Native Land Court when the block was adjudicated upon. Judge Eogan admits that he knew nothing of the service of the notices; and Mr. Locke recommends a rehearing, not stating whether the notices had been served or not. The Native Minister, Mr. Sheehan, then requested that the position of the land should be defined, as there seemed to be some doubt about the locality of the block; and on the 26th March, 1879, the tracings were furnished, and Mr. Sheehan minutes the papers on the same date, — Let rehearing go. The Order in Council for rehearing was prepared two days later; but a clerk of the Native Land Office seems to have imagined that the rehearing had not been applied for within twelve months of the adjudication. I presume he dated the adjudication back to the 2nd December, 1876 ; and, if it were so dated, no doubt he would have been correct. On this appearing, the Native Minister minutes, — Stay further action at present. His minute is dated the 2nd April, 1879. The next that happens is a letter from a Native called Na Hika, dated from Euioperanga, Patea, appealing that the Court should investigate their claims to the lands. This letter seems to have gone the rounds of the Native Office, and Mr. Sheehan asks the Under-Secretary to ask the Chief Judge of the Native Land Court whether there could not be a rehearing, as the Court held at Napier adjourned sine die; and the Chief Judge states,— I cannot see where the doubt is. The order was made by the Conrt on the 31st October, 1877, and the application on the 31st January, 1878 ; judgment published on the 7th December, 1877. Everything seems regular. —P. D. Fenton, 3/11/79. There is on these papers a valuable memorandum from Captain Mair, dated " Wanganui, 13th August, 1879:" — Mb. Booth. —Owhaoko is a valuable block partly in the Hawke's Bay and partly in the Bay of Plenty Districts. The Taupo Natives had a good claim to this land, but they state that, owing to the Gazette notices of ■ sitting of Land Court, at Napier, on the 2nd December, 1876, not reaching them in time, the land was awarded to Eenata Kawepo, and he has since made over 28,601 acres of it for a school reserve. They state that they applied for a rehearing, and their application was approved ; that they attended a sitting of the Court at Napier in 1877, but Ngatikahungunu would not allow the Courts to proceed. In August, 1877, Heperi Pikirangi, Paurini Karamu, Hika, and others made application in open Court to Judge Eogan at Taupo in this matter, when he informed them that their application had lapsed. I believe Hika and his friends have a real grievance. "Wanganui, 13/8/79. Gilbert Maie. On the 16th October, 1879, Judge Fenton wrote asking about the rehearing:— Hon. Native Ministee, Wellington. — I have the honour to call your attention to an application made to your office by Topia Turoa and others, recorded as No. 78/1675, asking for a rehearing of the claim to the block of land named in the margin, which application was referred to me, and returned to your office on the 25th September, 1878, with my recommendation that the request should be granted. No further action appears to have been taken in this matter. —P. D. Penton, Auckland, 16/10/79. In consequence of the change of Ministry in 1879 nothing seems to have been done until the beginning of 1880, when the matter came before the Hon. Mr. Bryce, who was then Native Minister; and he advised His Excellency in Council to grant a rehearing of the block of land called Owhaoko ; and accordingly, on the 4th February,

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1880, an Order in Council was granted directing a rehearing to take place within three years from the 31st October, 1877. Here I would call attention to the fact that Chief Judge Fenton, the Native Office, and every one concerned seem to have treated the 31st October, 1877, as the date of the adjudication on this block. As I have already pointed out, no Court was held on that date. An entry is made in the minute-book only when Judge Bogan found the order had not been previously made. But in his certificate he treats it as if the order had been made on the 2nd December, 1876 ; but no such order was made on that date. The Order in Council granting the rehearing was gazetted and forwarded to the Chief Judge of the Native Land Court, and then arise very peculiar complications. The notices of the rehearing appear in the Gazette on the Bth June, stating as follows :— Notice. Native Land Court Office, Auckland, 20th May, 1880. Whereas, by an Order in Council made on the 4th day of February, 1880, it was ordered by His Excellency in Council, under " The Native Land Act, 1873," "The Native Land Act, 1874," and "The Native Land Act, 1878," that the claim of Eenata Kawepo and others to a piece of land called Owhaoko, situate at Patea, heard and determined by the Native Land Court of New Zealand on the 31st day of October, 1877, at Porangahau, Hawke's Bay, should be reheard before the same Court, and that such rehearing shall take place before the 31st day of October, 1880 : Now, I hereby give notice that a sitting of the Native Land Court will be held at Napier, Hawke's Bay, on the 30th day of June next, for the rehearing of the above-named claim. A. J. Dickey, Chief Clerk. Here, again, it is assumed the order was made on the 31st October, 1877, but now it is at Porangahau ! No Court sat at Porangahau on that date. In fact, no one seems able to refer to " the order " without blundering ; and for a good reason—no " order " was ever made. Dr. Buller, who acted for Benata Kawepo, applied to the Chief Judge, Native Land Court, for an adjournment of the sitting, stating that " notice of the sitting had been received late." It will be observed that it appeared in the Gazette of the Bth June, the sitting to take place on the 30th June; and, as Benata and the people he represented lived near Napier, the time should been ample But, if it were not ample, what time had the people resident at Taupo when the case was originally heard ? He also stated that the Owhaoko claimants mostly resided at Taupo. As he was not acting for them, but, on the contrary, acting for Benata Kawepo, and for his lessees, the Messrs. Studholme, who ignored the claimants at Taupo, this would seem at first sight to have been very kind of Benata Kawepo's solicitor. His object appears to have been not, however, to obtain any redress for these Taupo claimants, but to get an adjournment of the Court, and that without consulting the claimants who resided at Taupo or any person acting for them. Notwithstanding the enormous delays they had already been put to about their rehearing, Judge Fenton adjourns the Court sine die, and inserts the following notice in the Gazette, 23rd June, 1880 : — Notice. Native Land Court Office, Auckland, 10th June, 1880. Notice is hereby given that the sitting of this Court, advertised to be held at Napier on the 30th instant, will not be so held, but is postponed to a future date. F. D. Fenton, Chief Judge. Some conversation or correspondence seems to have taken place between Judge Fenton and either Benata Kawepo or the people acting for him. They stated to him that the rehearing had already taken place ; and when he asks Mr. Dickey, the Clerk of the Native Land Court, whether this is the case, Mr. Dickey properly replies "that those stating that the case had been heard would perhaps give the date of such rehearing." At this time Judge Fenton was in Wellington, and the people who suggested to him that the case had been reheard must 2—G. 9.

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have been residents in or visitors to Wellington. Clearly it was not the Taupo Natives, and one can only infer who suggested it by the other surroundings of this case. Judge Fenton, on the 21st June, sends to Auckland for the epitome of the record of Owhaoko. Copy of the evidence and of the proceedings was sent to him by Mr. Dickey. There next'appears in the papers a request by Dr. Buller for the names of persons who asked for the rehearing,—clearly showing that up to this time he had not been acting for them, though it was apparently in their interest he had got the adjournment. The telegram is as follows:— Wellington, 26th July, 1880. Be Owhaoko: Please inform me by telegram of the names of the applicants for rehearing. The case has been adjourned sine die; and Mr. Penton has advised Studholme to make terms with a yiew to withdrawal. W. L. BOLLEE. A. J. Dickey, Esq., Native Land Court, Auckland. The latter part of this telegram is curious. It states that the Chief Judge of the Native Land Court " has advised Mr. Studholme to make terms, with a view to withdrawal." This is certainly a new function for a Judge to have assumed. And here it may be mentioned that Mr. Studholme had, in August, 1879, through his solicitors, Mr. Carlyle and Messrs. Whitaker and Bussell, applied for the sanctioning of a lease from Benata Kawepo and the others whose names were on the certificate, to Messrs. J. and M. Studholme. The lease was to be of the Owhaoko Block ; the rental, : and of all the other Owhaoko blocks ; rental, . The lease was granted for twenty-one years, and approved of by the Native Land Court. In answer to Dr. Buller's telegrams the information was given by Mr. Dickey. In the meantime the Judge has returned to Auckland, for, on the 11th October, 1880, Mr. Bridson, Clerk, Native Land Court, wires to the Under-Secretary of the Native Department as follows:— Owhaoko rehearing : Application N and D, 78/1675. —Chief Judge wishes to know if signatures are in the handwriting of one or of the several claimants, and what are the names attached.— W. Beidson, 11/10/80. For what purpose did the Chief Judge require this information ? Was it to enable Mr. Studholme, through his solicitor, Dr. Buller, to interview the applicants for' a rehearing ? Mr. Lewis replies,— W. Beidson, Auckland.— Be application for rehearing of Owhaoko : the signatures appear to be in the same handwriting, with the exception of Hohepa Tamamutu. The following are the names attached to the letter— viz.: Topia Turoa, Hohepa Tamamutu, Perenara te Papanui, Eawiri Kahia, Te Eangitahau, Te Behu te Keka, Te Heahea, and Paurini Karamu—eight in all.—T. W. Lewis, 11/10/80. And from the minute on the back of this telegram, in the handwriting of Judge Fenton, it appears that Mr. Studholme was also in Auckland. The minute is, — Weite letter to Mr. Studholme, at Northern Club, with copy of this.— October 12. On the 16th October the following appeared in the Gazette: — Notice. Native Land Court Office, Auckland, 28th September, 1880. Wheeeas, by an Order in Council on the 4th day of February, 1880, it was ordered by His Excellency in Council, under "The Native Land Act, 1873," "The Native Land Act, 1874," and " The Native Land Act, 1878," tha't the claim of Eenata Kawepo and others to a piece of land called Owhaoko, situate at Patea, heard and determined by the Native Land Court of New Zealand on the 20th day of December, 1876, at Porangahau, Hawke's Bay, should be reheard before the said Court, and that such rehearing shall take place before the 31st day of October, 1880 : Now, I hereby give notice that a sitting of the Native Land Court will be held at Napier, Hawke's Bay, on the 20th day of October next, for the rehearing of the above claim. A. J. Dickey, Chief Clerk.

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Here again let me note another blunder. In Mr. Dickey's notice of the 20th May, 1880, the hearing had taken place at Porangahau, on the 31st October, 1877. Now, it took place according to Mr. Dickey on the 20th December, 1876. For the sitting of the Native Land Court at Napier on the 29th October the notice appears only in the Gazette of the 16th October. How the Natives at Taupo were to become acquainted with the notice is not stated. There is nothing to show they were personally served with it. Several people seem to have been interested in this block. Mr. Donnelly wished to know the names of the applicants on the 11th October, 1880 ; but Mr. Dickey questioned whether it would be right to tell him who were the applicants, and in this Mr. Fenton concurred, for all the information Mr. Donnelly received was " that Benata was not the applicant." On the 25th October, 1880, a memorandum from Mr. Dickey to Mr. Fenton was written. It is as follows : — Me. Penton, —You desired me to ask Mr. Hamlin, the Interpreter to the Court, to open the Court advertised to sit at Napier on the 29th instant, and adjourn to the Ist proximo. I have delayed doing so until I have further instructions, as there is a rehearing, which must be called on or before the 31st instant —practically the 30th, as the 31st is Sunday. Can Mr. Hamlin call the case over^ adjourn it as well as the Court ? —A. J. Dickey, 25/10/80. On the 26th October there was a telegram to Mr. Hamlin, the Interpreter, from Mr. Dickey, as follows : — Please formally open the sitting of this Court at Napier on the 29th instant' and adjourn until Monday, the Ist proximo, at 2 p.m. No notice seems to have been taken of Mr. Dickey's pointed reference to the possibility of the rehearing being shut out by the adjournment of the Court. There is an undated memorandum in Judge Fenton's writing as follows:— Ask Mr. Hamlin to open the Court and adjourn till Monday at two. On the 26th October, 1880, Dr. Buller wires as follows to Napier :— Tokaanu, Monday evening. Be Owhaoko : Withdrawal of application for rehearing fully signed, and forwarded to you to-day by post. Am hurrying back. But in event of detention will ask you to take succession claims first, as usual hitherto. Am retained by Eenata Kawepo in all the other cases except Tareha's. Pixing of Tapuaeharuru Court gives great satisfaction. W. L. Buller, 26/10/80. His Honour Judge Fenton, or the presiding Judge, Native Land Court, Criterion Hotel, Napier. On the 27th October, 1880, Dr. Buller wires from Taupo as follows :— Be Owhaoko : Withdrawal of application for rehearing fully signed, and forwarded to your address Napier. W. L. Buller, 27/10/80. His Honour Judge Fenton, Native Land Court, Auckland. On receipt of which, Judge Fenton writes on the same piece of paper as Mr. Dickey's memorandum about the adjournment of the Court the following words : — The application for rehearing is withdrawn.—F. Fenton, 27th October. I wish here to remark that there was at this time no evidence whatever before Judge Fenton that the application for rehearing had been withdrawn. I assume that no Court would consider a telegram from the solicitor of the parties objecting to the rehearing to be evidence of the withdrawal of claims by those who had applied for a rehearing. The "withdrawal" referred to in Dr. Buller's telegram was forwarded to Judge Fenton, and was as follows :—

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To F. D. Fenton, Esq., Chief Judge, Native Land Court, Napier. This is a request from us, the persons applying for a rehearing of Owhaoko, that the claim for a rehearing contained in our letter to the Government of the 31st January, 1878, may be cancelled. We have seen the Gazette notifying that that land will be heard at Napier on the 29th October. Let it (our application) be entirely cancelled. Topia Turoa. Hohepa Tamamutu. Perenara Papanui. Eawiri Kahia. Te Bangitahau. Te Eehu te Keka. Te Heuheu. Paurini Karamu. Written at Taupo on the 25th October, 1880. The document is in the handwriting, I am informed, of a clerk to Dr. Buller. Three have signed —Topia Turoa, H. Tamamutu, and Te Behu te Keka. The other signatures are in the same handwriting—namely, that of Hohepa Tamamutu. Dr. Buller, in enclosing it to Judge Fenton, wrote as follows: — Sir, — I have the honour to forward herewith a formal withdrawal of the application of Topia Turoa and others for a rehearing of the Owhaoko case, together with an explanatory letter from Hohepa Tamamutu, who signed all the names to the original application. The withdrawal is signed by Topia Turoa and by Hohepa Tamamutu, on behalf of himself and the others. I have, &c, W. L. Buller, Solicitor for Applicants. His Honour Judge Fenton, Napier. The following is the translation of the explanatory letter referred to. It is in the handwriting of Dr. Buller's clerk, but signed "Hohepa Tamamutu :" — Friend,— Tokaanu, 2oth October, 1880. It was I who signed the names of Hohepa Tamamutu, Perenara te Papanui, Bawiri Kahia, Te Bangitahau, Te Behu te Keka, Te Heuheu, and Paurini Karamu, which appear in the letter sent by us to the Marquis of Normanby on the 31st January, 1878. I also signed their names to the document cancelling the application for a rehearing. Ended. From your friend, To Mr. Fenton. Hohepa Tamamutu. Witness to signature—W. L. Buller, Solicitor. I do not think this letter is of any consequence, because, independent of the petition to the Marquis of Normanby, there had been petitions by other Natives who had demanded a rehearing. Dr. Buller seems to have received from Topia Turoa and Hohepa Tamamutu a retainer in the matter of the rehearing. Why there was need of a retainer in a case which was withdrawn by them, I cannot understand. The impropriety of a solicitor or counsel accepting a retainer from both sides I need not point out. On the Ist November the Court sat at Napier, and the question of this Owhaoko Block came before it. The newspaper report says,— Native Land Court, Tuesday, Ist November, 1880. A sitting of the Native Land Court was held yesterday in the old Courthouse, before Chief Judge Fenton, Judge O'Brien, and Mita Hikairo, Assessor. The first case called on was the Owhaoko rehearing. The Chief Judge, addressing Dr. Buller, said he had received a communication from the Natives who applied for the rehearing, expressing a desire to withdraw. Dr. Buller explained that he held a retainer from those Natives, and was instructed to appear and withdraw the application. The Chief Judge said ho was in doubt as to how such a course would affect the present title. Dr. Buller replied that he intended to ask the Court, in dismissing the claim, to affirm the original judgment, and argued that the Court had power to do this under the provisions of " The Native Land Court Act, 1880." The Chief Judge said there was something in the Interpretation Act to prevent this being done.

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Dr. Buller thought otherwise; and The Chief Judge then proposed to postpone the case till this morning, to enable counsel to consider this point more fully. Mr. Cornford said he hoped he would be heard before the Court came to any decision. The Chief Judge declined to hear him unless he represented some of the applicants. Mr. Cornford : I represent Heperi. Dr. Buller : And he is not among the applicants. Mr. Cornford asked to be supplied with a copy of the application for rehearing, and the Chief Judge assented. He was proceeding to address the Court, but was stopped, and the case ordered to stand postponed. It seems very peculiar that the Chief Judge should inform Dr. Buller that he had received notice of withdrawal from the Natives, when the fact was that the " withdrawal " had been forwarded to him by Dr. Buller. Mr. Cornford, a barrister, claimed to appear for some Natives, but he was not allowed to address the Court. Next day the matter came up again, and Mr. Lascelles, according to the newspaper report, appeared for Mr. Cornford; and the following, according to the report in the HaivTce's Bay Herald of the 3rd November, 1880, took place : — (Before Chief Judge Fenton, Judge O'Brien, and the Native Assessor.) Owing to the inadequacy of the accommodation in the old Council Chamber the Court removed yesterday to the Supreme Courthouse, where at 2 p.m. the Court opened its sitting. The Owhaoko rehearing case was resumed. Dr. Buller addressed the Court at some length to show that the provisions of "The Interpretation Act, 1878," as to repeals, did not apply to such a case as the present; that the proceedings were regulated by the various Native Land Acts as modified and controlled by the amending and consolidating Act of 1880; and that the Court had power, on the withdrawal of the opposition, to affirm the original judgment. Dr. Buller put in his retainer, in writing, to appear for the Natives who had sought the rehearing, and who now instructed him to withdraw all objections on their part to the former judgment; also a formal notice of withdrawal, signed by these Natives and addressed to the Court. He argued that it was the duty of the Court, on dismissing the application accordingly, to reinstate and affirm the old decision, using for that purpose the evidence already before the Court, as provided by section 58 of " The Native Land Act, 1880," so as to prevent the possibility of a valuable block of land, containing about 160,000 acres, being left unclothed with any title at all. The Chief Judge said he would take further time to consider the points raised. Mr. Lascelles applied for leave to address the Court. Dr. Buller objected on the ground that Mr. Lascelles could not represent any of the applicants for rehearing, and had therefore no locus standi before the Court. Mr. Lascelles said he appeared for fifteen Natives who were interested in the land, although their names were not in the application. The Chief Judge : Then we do not know you; for these men are not before the Court in any way. After some further discussion the Court agreed to hear Mr. Lascelles only as amicus curia, and allowed him to reply to the argument on the other side. Mr. Cornford applied for leave to address the Court; but the Chief Judge refused on the ground that Mr. Lascelles had appeared for him, and had been heard by the indulgence of the Court. After a short conference, the Court reserved its decision till the following morning. A few more succession claims were then proceeded with, but very little progress was made owing to the unpreparedness of the claimants. The Court finally adjourned to 10 o'clock this morning. Next day the Court sat, and, according to the report in the Haivke's Bay Herald of the 4th November, 1880, the following took place: — Native Land Court, Wednesday, 3rd November. (Before Chief Judge Fenton, Judge O'Brien, and the Native Assessor.) Owhaoko Behearing. The Chief Judge said that the Court had promised to say something on this matter; but, in point of fact, they had nothing to say. The application

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having been withdrawn, there was really nothing before the Court, and there could be no rehearing. He would, however, take the opportunity of noticing the arguments of counsel, which must be regarded more in the way of suggestions for assisting the Court. As to Mr. Lascelles' contention, —that the Natives who had signed the application for rehearing were merely the agents of others, —the Court could not for one moment recognize such a doctrine, the operation of which, if admitted, would be fallacious, delusive, and calculated to mislead. The Court could only recognize those who came before it as claimants. To suppose the existence of, say, ten undisclosed claimants in the background for every one who appeared would land the Court in endless difficulty and trouble—would, indeed, have the effect of stopping its proceedings altogether. The whole theory of the Native Land Act, when the Court was created in 1862, was the putting an end to Maori communal ownership. To recognize the kind of agency contended for would be to build up communal ownership, and would tend to perpetuate the evil instead of removing it. His Honour instanced succession claims to show how impossible it was to treat as representatives those Natives whose names had been enrolled as owners. The consent to the names must carry with it all the legal consequences, and those admitted must be treated as absolute owners in fee-simple. In the next place, as to whether the Natives who had withdrawn the application acted with the concurrence of the rest, it appeared to the Court that the assent or concurrence of the others did not signify. The same power that applied for the rehearing had withdrawn the application. As often happened with Natives, the same person who signed the names in the application signed them in the notice of withdrawal also. The right to do this had never been questioned; and the case would now be entered up as "No appearance." The Court was clearly of opinion that it had no power to make any order. With regard to the effect that this might have on the existing title, as argued by Dr. Buller, certain doubts had been raised in the minds of himself and colleague as to the construction of the present statute law, upon which they had decided to take the opinion of the Supreme Court. Of course it would be a monstrous injustice to allow a title to be destroyed by merely getting a rehearing and not prosecuting it. It was evident in this instance that very large interests were involved, and that the case had occasioned much anxiety. After full consideration the Court had come to the conclusion to submit a case to the Supreme Court, under the powers in that behalf which appeared still to obtain under the. Act of 1873. The case was accordingly dismissed. I cannot pass over this judgment without stating my entire disagreement with it. No more monstrous injustice could be done by any Court than by declaring certain persons were owners, and treating them as absolute owners, when the Court knew they were not the whole owners, but only some of those who were owners. It was the Court's duty to name all the owners, and not to select a few only and call them "absolute owners." Communal title no doubt was and is bad, but depriving some of the " community " of all their possessions was and is worse. So far as I can see, no Maoris wished to perpetrate any " monstrous injustice :" those who were the means of accomplishing that were Europeans. Judge Fenton says, "it would be a monstrous injustice to allow a title to be destroyed by merely getting a rehearing and not prosecuting it." lam amazed at his use of such language. He knew the desire not to prosecute the rehearing did not come from the Natives. If Dr. Buller's telegram of the 26th July, 1880, is correct, it was at Judge Benton's own suggestion that the Natives were asked to consent to a withdrawal of the rehearing. And it seems to me that, once a rehearing has been granted, any person who had any claim to the land had a right to be heard, and that two or more persons who had applied for a rehearing could not stop the Court investigating the case fully. The whole of these proceedings, in my opinion, were invalid. (1.) The order for rehearing had only operation for three years from the 31st October, 1877, and this Court was sitting, without any adjournment of the case, therefore, one day too late. The Court had no power to deal with the application at all. (2.) Further, if the rehearing had been withdrawn before the Ist November, as Judge Fenton had minuted, again the Court had no power to deal with the case, for its jurisdiction had not been

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kept alive by any adjournment of the case. (3.) Again, Dr. Buller's retainer, which the Court seemed to consider conclusive of his right to ask for any order he pleased, was only signed by two Natives; and the other Natives interested, and who had applied for the rehearing, had given him no power to appear for them. Assuming, therefore, that the withdrawal of the application for rehearing had been regular in every respect, and that the statement made by Hohepa Tamamutu was false-—namely, that he had signed a document which apparently had come from the Native Minister, not knowing its purport —in my opinion the proceedings of the Native Land Court were without legal warrant. But I must now refer to what was happening amongst the Natives. That they never freely consented to withdrawal will, I think, be apparent. On the 3rd November, 1880, Heperi Fikirangi and several others wrote a letter to Judge Fenton, of which the following is a copy as translated :— Friend, — 3rd November, 1880. Salutations to you. This is a greeting to you on account of the good way in which you administer the law; also to inform you of the reason of our being too late for the first hearing of Owhaoko. When the Kahiti reached us we commenced to catch our horses, and came. When we arrived ( the investigation w ras over. Owhaoko was below some other lands in the Kahiti, and Benata had it placed before them, with the intention that it should be over on our arrival. We then waited till the Court was opened; and the Judge would not consent. We then sent claims to the Government and to the Chief Judge, and our application was granted. The Kahiti for the hearing of that land came here, and we came on account of that Kahiti. Benata had it stopped. I waited for the Court to have it adjourned to Taupo. We went to that Court, and Benata had it stopped. On account of this Kahiti he sent Mr. Buller to Taupo to work mischief among the people of that place. He wrote the names of absent persons to his letter (asking) that the Court should not be opened. When they came here they caught Te Behu and asked him to sign his name, but he would not consent; he was paid £5. There are other words that I cannot write. Heperi Pikirangi, and others. To Mr. Fenton, Chief Judge, Native Land Court. All that is minuted on this is a note by Mr. Dickey that "the rehearing had been withdrawn." lam not aware of any reply having been given by Judge Fenton to this letter. A telegram dated the 11th November, 1880, was sent to Mr. Bryce : —. Taupo, 11/11/80. We request that you will remove our names from the document withdrawing the Owhaoko case from Court. We now wish the hearing to go on. This lawyer, Dr. Buller, cajoled us to sign our names to the (draft) document you gave him. Friend the Minister, iet the title to Owhaoko be reheard at Napier. We, the persons who signed Dr. Buller's document, agree to it. Hohepa Tamamutu. On this Mr. Bryce minutes, — Ido not understand this at all. I gave Dr. Buller no draft document for signature. The telegram had better be repeated to the Chief Judge; and add that I do not understand it.—John Bryce, 11/11/80. This telegram was repeated to the Chief Judge. The Chief Judge took no notice of this telegram, and sent no reply to the Native Office. The Natives who forwarded the telegram to Mr. Bryce received no reply to their communication. On the 10th November, 1880, a letter was sent from Bawiri Kahia to the Native Minister, which seems to have arrived on the 17th November, 1880. The following is a translation of the letter : — Friend, — Hatepe, Taupo, 10th November, 1880. Salutations. This is a word of explanation to you with reference to the report that has reached me to the effect that I was one of the persons who wished to stop the Court investigating the title to the Owhaoko Block. Now, I state that I did not see my name signed to that document. It was signed secretly without my concurrence, and I ask that my name may be erased from that document stopping the operation of the Court with respect to the investigation of the title to Owhaoko. I did not wish to stop the Court. I have a surveyor in that block; therefore it is that I say that my

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name should be erased from that document, and placed in the document agreeing to the investigation of the title to the portion of that block called Owhaoko, in which I am interested. Therefore I say that I should be omitted from that document. There are two reasons for this : first, lest it should apply to all my interests ; and, secondly, my name having been appended to that document without my knowledge- I am of opinion that the Court should be reopened. I object to a statement reported to have been made by Hohepa Tamamutu, to the effect that he was justified in placing a person's name to that document without his knowledge, or secretly forwarding the claims of a person to certain lands. I say, No. Let him deal with his interests, and me with mine, which would only be acting according to law. Now, friend, if the Court is to be opened, inform me. Ended. From your friend, To the Hon. the Native Minister. Bawiri Kahia. It will be noticed he denies that he signed the withdrawal. I have already stated that the withdrawal had been signed only by Topia Turoa, Hohepa Tamamutu, and Te Eehu te Eeka. The other signatures had been annexed by Hohepa Tamamutu. On receipt of this letter, Mr. Gill wires to the Eegistrar of the Native Land Court at Auckland as follows : — Government Buildings, 15th January, 1881. Kindly wire me the position of the Owhaoko Block, 134,650 acres, heard at Porangahau in December, 1876, and ordered for rehearing in February, 1880. Has it been reheard ; and to whom awarded ? Where, in Gazette, can I find particulars ? B. J. Gill. The Eegistrar, Native Land Court, Auckland. And the reply from Mr. Dickey is as follows : — Be Owhaoko : a case is going to Supreme Court. Will not be decided before next session of Parliament most likely. A. J. Dickey, Eegistrar. B. J. Gill, Esq., Under-Secretary, Land Purchase Department, Wellington. Mr. Bryce wished to get at the facts of the case ; and his minute on the papers, dated the 13th January, 1881, was, — Mr. Gill or Mr. Booth may know something of this matter. It is likely enough that the writer's name has been forged to some document, as he alleges. Mr. Gill's memorandum is unique. It is as follows :— Under-Secretary, Native Department. This case is a very complicated one, and will probably only bo decided by the Supreme Court. I think a simple acknowledgment of Bawiri Kahia's letter is the proper course. The Government are not buying the land. Bichard J. Gill, 20/1/81. It is perfectly apparent that Mr. Gill knew nothing of what was being done, and that he had been bamboozled by Mr. Dickey's telegram. Kawiri Kahia's letter is acknowledged, and that is all the redress that he obtains. As had been stated by the Court on the 3rd November, The Chief Judge states a case for the Supreme Court, to ascertain if he could make an order; and this case was stated notwithstanding that the Natives had objected to the withdrawal of the rehearing, and without their being consulted regarding it. The case that was stated for the Supreme Court's decision was as follows :— On the 2nd December, 1876, an investigation was held at Porangahau into the Native title to a block of land called Owhaoko ; and on the 31st October following an order of Court was made in respect of the land, in the terms following:— "Native Land Acts, 1873, 1874. " District of Hawke's Bay.—Owhaoko Block.—At a sitting of the Native Land Court of New Zealand, held at Porangahau, in the said district, on the second December, one thousand eight hundred and seventy-six, before J. Bogan, Esquire, Judge, and Hone Peeti, Assessor, it was ordered that a memorial of the ownership of Eenata Kawepo, Ihakara te Earo, Eetimana te Bango, Noa Huke, Hira te Oke, and Karaitiana to Eango, of a parcel of

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land at Patea, in the District of Wellington, containing one hundred and thirty-four thousand six hundred and fifty (134,650) acres, and known by the name of Owhaoko, be inscribed on a separate folium of the Court Eolls. " Witness the hand of J. Eogan, Esquire, and the seal of the Court, the thirty-first day of October, one thousand eight hundred and seventy-seven. "J. Eogan, Judge." Subsequently an application was made to the Government at Wellington, by Topia Turoa and others, for a rehearing of this case ; and on the 4th February, 1880, an Order in Council was made directing that a rehearing should take place. On the Ist November the Court sat at Napier to rehear the case. At such sitting documents were put before the Court showing the absolute withdrawal of the appellants from the further prosecution of their appeal; and they did not appear. Thereupon Dr. Buller, on behalf of the persons who had obtained the order for rehearing, applied to the Court to make an order confirming the original order of the Court. The Court ruled that, as the case had been withdrawn by the appellants, there were no parties or case before the Court, and that the Court had therefore no power to make such order as was prayed by Dr. Buller, or any other. The Court ordered, under section 103 of the Act of 1873, that the following question be sent to the Supreme Court for decision : In cases of rehearing, where persons who have successfully applied for a rehearing subsequently withdraw and abandon the prosecution of their appeal, can the Native Land Court make any order ? Auckland, 9th July, 1881. J. Benton, Chief Judge. It is not perhaps necessary that I should set forth the telegrams that passed before the statement of the case was finally settled. Mr. Studholme, the lessee, sent the following telegram to the Chief Judge:— Have you done anything re amendments? Anxious. Belying on you.— Jno. Studholme, 1/6/81. To which the following reply was sent: — Have delayed case until last moment, for obvious reasons. Buller is now settling it. Better that judgment of Supreme Court should be during session.—F. D. Fenton, 1/6/81. I gather from this that, if the Supreme Court decision was adverse to the affirming of the previous decision of the Court, an application would have been made to Parliament for some Act to make Eenata's and his friends' title complete. Mr. Cornford appears to have looked over the case, but whether he was acting for the Natives or for Dr. Buller's clients does not appear. It would appear from the telegrams that he was acting in the interests of Dr. Buller's clients. The judgment of the Supreme Court was that, under section 50 of " The Native Land Court Act, 1873," if the original decision was neither reversed nor amended, it stood. The order certified as follows : — It is certified and adjudged in cases of rehearing under section 58 of the above Act, where an order has been made for the rehearing, and the applicants subsequently abandon their application, the Native Land Court has power to affirm the original decision. The Court does not deal with the facts of this case, but only gives a general opinion. It is, I think, to be regretted that the whole facts had not been stated in the case by the Chief Judge to the Supreme Court. He knew that persons who had applied for the rehearing had not abandoned the prosecution of their appeal, for the case was not settled until the month of July, 1881, and in 1880 he had forwarded to him the telegram which had been sent to the Hon. the Native Minister. He had also received the letter from Heperi Pikirangi and others before set forth. And the Hon. Mr. Bryce had received the letter of Kahia, as before stated. I may further remark that, if the the Native Land Court assumed that Dr. Buller was acting for Topia Turoa and Hohepa Tamamutu, then they knew a barrister or solicitor was appearing for what was practically both plaintiff and defendant. I do not know whether this practice, condemned in all Courts in all civilized countries, has been usual in the Native Land Court. Further, ?-G. 9 r

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it is plain that Dr. Buller was the Messrs. Studholme's solicitor as well. It was, in my opinion, the bounden duty of Judge Fenton, before he sent the case for the opinion of the Supreme Court, to have had the whole question of the signatures to the withdrawal and the telegram repudiating the withdrawal adjudicated on ; and I can find no excuse for his neglect of such duty. It was entirely wrong for a Judge of the Native Land Court to certify to the Supreme Court that the Natives had abandoned their application for rehearing, when one of the Natives had repudiated such abandonment. The Chief Judge also knew that a large number of Natives claiming to be interested in the block insisted on their claims being heard; and I submit that the proper interpretation of section 50 was that, where a rehearing was ordered and proceedings begun, if the persons making claims abandoned them, then the former order could be affirmed, but persons who had claims had a right to be heard whether they were applicants for rehearing or not. The Chief Judge knew that many people claiming to be interested in the land had been deprived of making their claims in Court through the adjournments that Benata's solicitor had been allowed to obtain. The decision of the Supreme Court was given on the 27th April, 1881, and the Chief Judge, after the giving of that decision, made an order as follows :• — "Native Lands Act, 1873," and the amending Acts. Distkict of Batea, in the Brovincial District of Wellington.—Ovvhaoko Block. —At a sitting of the Native Land Court of New Zealand, held at Napier, in the Brovincial District of Hawke's Bay, on the first day of November, one thousand eight hundred and eighty, before Francis^Dart Fenton, Esquire, Chief Judge; Laughlin O'Brien, Esquire, Judge; and Wiremu Mita Hikaero, Assessor, in the matter of a parcel of land situate at or near to Fatea, in the Provincial District of Wellington, and containing one hundred and thirty-four thousand six hundred and fifty acres, [and known by the name of Owhaoko, in respect of which an order was made by this honourable Court sitting at Porangahau, in the Provincial District of Hawke's Bay, on the second day of December, one thousand eight hundred and seventy-six, for a memorial of ownership in favour of Eenata Kawepo, Ihakara te Earo, Eetimana te Eango, Noa Huke, Hira te Oke, and Karaitiana te Eango ; and in the matter of an Order in Council made on'the fourth day of February, one thousand eight hundred and eighty, directing that a rehearing should take place before the said Court: Upon such rehearing it was ordered that the original decision be affirmed, and that the former order of the Court be confirmed accordingly. Witness the hand of Francis Dart Fenton, Esquire, Chief Judge, and the seal of the Court, this thirtieth day of October, one thousand eigh£ hundred and eighty. F. Fenton, Chief Judge. This order is peculiar. The order purports to have been made in Court, in the District of Patea, in the Provincial District of Hawke's Bay, and at a sitting of the Native Land Court held on the Ist November, 1880; and it purports to have been signed in the Court and sealed on the 30th October, 1880 ! Now, no doubt under the order of the Supreme Court, the Native Land Court could make an order nunc pro tunc, but it could not make an order as on a day the Court never sat. There was no Court sitting on the 30th October, 1880, and I have stated my opinion that the Court had no jurisdiction to make any order after the 31st October unless possibly the case had been adjourned, which it was not. The insertion of the date 30th October was made because it was felt that the jurisdiction of the Court ceased after the 31st October. On its face the order is absurd, for the Chief Judge purports to sign an order on the 30th October, 1880, that was not made till the Ist November, 1880. I may add that the order was drawn up by Messrs. Buller and Gully, and the date of the signature was filled in at Dr. Buller's suggestion. What was the correct date to put in the order seems to have ptizzled the Chief Judge, and he referred the matter to Dr. Buller. Dr. Buller replied as follows : —

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Sib, — lie Owhaoko : As the Chief Judge has been good enough to ask my opinion as to the proper date for the order confirming the original Owhaoko judgment, I would suggest that the safest date will be the 30th October, 1880. The order for rehearing (as published in the New Zealand Gazette of 1880, page 168) directs that such rehearing shall take place within three years from the 31st day of October, 1877. Consequently, the 30th October, 1880 (the 31st being a Sunday) was the latest date on which such rehearing could take place within the terms of the order. On that day the Clerk of the Court attended and adjourned the case till Monday to allow time for Mr. Fenton's arrival, I have, &c, A. J. Dickey, Esq., Native Land Court. W. L. Bullek. This letter is incorrect: the Court was not adjourned on the 30th, but on the 29th. See Hawke's Bay paper, 30th October, 1880 :— Judge Fenton, accompanied by Mr. Gray, Clerk of the Court, and Hikairo, Native Assessor, is on board the " Tararua," which will arrive on Sunday, and the Native Land Court will sit on Monday. The Court was formally opened and adjourned yesterday by Mr. Hamlin. Nor was there any hint even that the case was ever adjourned. The fact was that the Chief Judge assumed that his entry of the withdrawal on the 29th ended the case. And I have already submitted that, when the rehearing was ordered, if there were any Natives who had an interest in the block who wished to attend the Court to have their claims investigated, the Judge was bound to hear them. Nowhere in the Act can I find that a rehearing is to be confined to the question whether the Natives who had previously been adjudicated owners or the Natives who obtained the rehearing were to be deemed to be the owners. On the contrary, the whole policy of the law was that the Native Land Court, on a rehearing, was to have as full powers in deciding who were the true owners as it had when the case was originally before it. I therefore think the Chief Judge did wrong in excluding some claimants who had not asked for the hearing from being heard ; and, in any event, this fact ought, in all fairness, to have been stated to the Supreme Court in the special case. The next that is heard of the Owhaoko appears in a telegram sent from Dr. Buller to Mr. Studholme on the 11th January, 1882 :— Owhaoko gazetted for hearing. Get Fenton wire Heale judgment affirmed. Knew nothing till I showed him copy Eichmond's order. This telegram is dated the 11th January, 1882, and was addressed to Mr. Studholme, Northern Club, Auckland. It may be here noticed that no order had up to this time been made by the Native Land Court dealing with Owhaoko. On the receipt of this telegram Mr. Studholme sent the following letter :— Northern Club, Auckland, 12th January, 1882. My dear Fenton,— I have just received the enclosed telegram from Dr. Buller. Judge Heale is apparently unacquainted with the facts of the case. Will you kindly advise him ? It would be very annoying if there was any further difficulty re title. I leave for Napier, per "Te Anau," at noon. Yours, &c, John Studholme. And on that Judge Benton wires to Dr. Buller as follows :— Dr. Buller, Napier. 12th January, 1882. Owhaoko seems to be a new claim. I think you should ask for costs. F. D. Fenton. While the Judge wires as follows :— Judge Heale, Napier. 12th January, 1882. Owhaoko has been heard and is finished. This claim should be dismissed with costs. F. D. Fenton. And I have no doubt the Chief Judge's opinion was obeyed. The appearance of this claim being set down for hearing may be thus accounted for : The Natives called Owhaoko " Ngaruroro ;" and

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some of them —namely, Bawiri Kahia, Mere Hapi, Hami Bahiroa, Erue te Moho, and others—had complained that they had not had an opportunity of making their claim. They therefore applied to have the title to Ngaruroro investigated. This was gazetted as follows:— Native Land Court, October, 1880. Notice of Times and Places for investigating Claims. Notice is hereby given that the claims, on behalf of themselves and others, of the several persons whose names are mentioned in the first column of the Schedule hereunder written, to the several blocks of land of which the names and localities are mentioned in the second column, the boundaries of which were published in former notices, will be investigated at Napier on the 25th day of October next, and following days. The maps of such of these lands as have been surveyed can be seen at the Courthouse of the Besident Magistrate, Napier. A. J. Dickey, Begistrar. Native Land Court Office, Auckland, 10th September, 1881.

The Native Land Court officers did not then apparently know that Ngaruroro and Owhaoko were the same. Owhaoko next appears in the papers in the form of an application from certain persons to subdivide. The letter is signed by Karaitiana te Bango and others. The letter was minuted, — Write to Dr. Buller asking what has been done about the encumbrances on this estate— i.e., the survey charges. I am anxious to get the affair discharged from our books.—F. D. Fenton, 16/2/82. I must now refer to what took place about Owhaoko No. 1 (School Beserve) and Owhaoko No. 2. It will be observed, from what I have said previously, that this question of Owhaoko No. 1 (School Beserve) came first before the Court on the 16th September, 1875, and that Noa Huke said that there were other people than the three claimants —namely, Benata Kawepo, Noa Huke, Hirate Oke —concerned in the land. The names of only three, however, were given on this date. 1 also notice that the land was to be " inalienable " and for a school endowment, and that was the reason given why the people did not object to it being put through the Court. All the people—those present and those absent—had apparently consented to the land being "inalienable " and being given as an endowment for school purposes. The area given in the block was 38,220 acres, but it appears from the evidence that there had been no proper survey. The boundaries given were only sketch-lines. The Judge stated that he had no doubt about the title, but until the survey had been completed the memorial of ownership could not be ordered. None of these two blocks came again before the Court. On the Ist August, 1876, when the chief block called Owhaoko was before the Court, it was stated to contain 164,500 acres, and this would include the school reserve and Owhaoko No. 2. There is no entry in the minutes of anything about this school reserve from the 16th September, 1875, until the minutes dated Ist December, 1876, at page 413. I give a photograph (annexed) of these pages, and of pages 417 and 418. In my opinion the minute-book has been altered. My reasons for so stating are the following : The words " Court adjourned," in the

Names of Claimants. Name and Locality of Block. iawiri Kahia, Mere Hapi, Hami Pahiroa, Eru te Moho, Hoeta te Hata, Pekarnu Patana, Eirimu te Eakato, Tah.au, Paurini Karamu, Hariata Taihoa, Katarina Ngaweherua,, Werewere, Te Eehutai, and others -Ngaruroro, near Taupo.

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middle of page 413, have been struck out; the words, " Owhaoko, see page 136 and following," as well as all that follows, down to " Saturday, 2nd December, 1876," on page 414, are written in different ink from that which appears on the first half of page 413. Then it will be observed that down to the word " order," except the words interlined immediately above "order," viz., "160,000 acres to stand over till a proper plan is produced: see copy telegrams pp. 418," the whole remarks concern the large block —they have no reference to the school reserve. And what follows after the word " order," save where the words have been struck out and altered, and the words "No. 1 (School Beserve) " inserted, also refer to the large block, and not to the school reserve. But there is conclusive proof that these words that I have quoted as having been inserted, as well as the alterations that follow, must have been inserted some time after the Bth December. The minute purports to be a minute of what took place in the Court on the Ist December. It will be noticed that the words, " to stand over till a proper plan is produced : see copy telegrams, page 418," are interlined. Now, the telegrams on page 418 are telegrams sent and received on the 7th and Bth December—that is, six and seven days after this sitting of the Court. It is perfectly plain, therefore, that these words have been inserted after the Ist December, 1876, and that the figures " 164,500" have been struck out, and "28 " placed before them; that the " 0 " has been changed into a " 6," and the last " 0 " made a " 1 ;" that the words "less 20,000, as aforesaid," have been struck out, and "Twentyeight thousand six hundred and one " have been written, and that all these alterations were made some time after the Bth December; and they, must have been written in not by order of any Court, for no Court was sitting save on the 20th December, and there is no reference in the minute to anything having been done on the 20th December. Then, what follows on page 417, 418, must have been written in —not as a minute of any Court —also some time after the Bth December. So far as Owhaoko No. 1 (School Beserve) and Owhaoko No. 2 are concerned, neither of these blocks has been judicially determined on in the Native Land Court, and any memorials of ownership relating to them that have been issued have been issued without due sanction of law. It seems to me that what muse have occurred is the following : Perhaps after the Court rose the Clerk—very likely by the order of the Judge—entered the order dealing with the whole 164,500 acres ; then, after this had been entered, the Judge at some subsequent time thought that the plan that Mr. Maney had produced was not sufficient, and hence sent the telegram of the 7th December, 1876 :— To Captain Heale. Gisborne, 7th December, 1876. Benata Kawepo and Mr. Maney were solicitous that I should order a memorial of ownership for the block of land called Owhaoko, 136,000 acres, which passed the Court six or eight months. No question as to ownership. The survey, as I believe, is correct, but requires to be tied to trig, stations. I cannot make the order under the circumstances, except by your advice. J. Bogan. —receiving the reply, on the Bth December, 1886, — Impossible to issue a proper title to block of such magnitude without trigonometrical connections by a trustworthy officer of the staff.—Thos. Heale 8/12/76. It is doubtful, in my mind, whether this minute was altered before the 31st October, 1877, and whether the entry on pages 417 and 418, and also that on page 446, were ever made until the 31st October, 1877. The minute unaltered is in Mr. Brooking's handwriting, who was then Clerk of the Court. The alteration in the minute, as well as the minutes on pages 417, 418, and 446, are all in one handwriting— that of Mr. Edwin Woon ; and I think that what may have occurred

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is this : Judge Bogan, in 1877, is asked to issue a memorial for the Owhaoko Block. He wires on the 29th October from Gisborne to Mr. Dickey, the Chief Clerk of the Native Land Court at Auckland, as follows :— Blease supply me with the names of owners for Owhaoko — large block containing 134,650 acres.—J. Bogan. Mr. Dickey replies as follows :— Auckland, 31st October, 1877. J. Bogan, Esq., Judge Native Land Court, Gisborne. Owhaoko No. 1 contains 28,681 acres; No. 2, 181 acres 1 rood 16 perches. No order made for a block containing 134,650 acres. Names for Nos. 1 and 2 are the same — viz., Benata Kawepo, Ihakara te Baro, Karaitiana te Bango, Betimana te Bango, Noa Huke, and Hira te Oke.—A. J. Dickey. Now, it is clear that Judge Bogan may have issued orders without having any minute of them for Owhaoko No. 1 and Owhaoko No. 2 ; and if he has issued them he put in names that were only to be applicable to the large block Owhaoko. For Owhaoko No. 1 there were only to be three names according to the evidence given on the 16th September, 1875. The certificates purported to be dated on the 20th December, 1876. Mr. Woon may have altered the minute of the Ist December, 1876, in order to make the Minute-Book conform to a certificate that the Judge had issued, and then entered the minute of the 31st October, 1877, to decide the title to the larger block. Or it may be that the minute was altered some time after the Bth December and before the 20th December, 1876. But, whenever altered, it is clear that the minute is not a minute of anything that took place on the 2nd December, 1876; and the certificate stating that a decision was come to on Owhaoko No. 1 (School Reserve) and Owhaoko No. 2on the 2nd December is erroneous. Why the No. 1 (School Reserve) should have been issued without being rendered inalienable I am at a loss to understand. Nor is it apparent why there should have been six names in the memorials. Three persons have been added as owners who, so far as the evidence is concerned, have no title whatever to be declared owners. Referring now to what took place after the rehearing had been declined or withdrawn, and the case stated for the Supreme Court, I may say that the Natives still kept protesting, some of them writing so late as 1884 to the then Chief Judge of the Native Land Court. Mr. Macdonald minuted the papers that he " could not do anything." The application for subdivision of the land comes before the Native Land Court of which Major Mair is Judge. Notwithstanding that Owhaoko No. 1 is marked as a " school reserve," the Court, without any notice being given to the Government or the Education Department, proceeded to make orders for subdividing the land, the allocations made being as follows :— Owhaoko. —Benata Kawepo, 80,790 acres. Owhaoko A. —lhakara te Baro, Karaitiana te Bango, and Betimana te Bango, 40,395 acres. Owhaoko B. —Noa Huke, 13,465 acres. Oivhaoko No. I. —Benata Kawepo, 17,160 acres 2 roods 16 perches. Owhaoko No. Ik. —lhakara te Baro, Karaitiana te Bango, and Betimana te Bango, 8,580 acres 1 rood 8 perches. Owhaoko No. La. —Noa Huke, 2,860 acres 16 perches. Owhaoko No. 2. —Benata Kawepo, 81 acres 1 rood 16 perches. Oivhaoko No. 2a. —lhakara te Baro, Karaitiana te Bango, and Betimana te Bango, 60 acres. Oiuhaoko No. 2b. —Noa Huke, 40 acres. The orders were made, as I have said, without any reference to the 28,000 acres being a school reserve. In fact, it was treated, though marked "school reserve" in the memorial, as if it was the private property of the six Natives ; and, according" to the decision of Judge Mair, the 160,000 acres has been divided amongst the Natives as I have pointed out.

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I now summarize the result of my investigation as follows:— (1.) In my opinion no valid orders regarding the Owhaoko blocks have ever been made by the Native Land Court. (2.) That, as regards the Kaimanawa-Oruamatua Block, the order was improperly made; for the Court was informed that other persons had interests in the land. (3.) That the Native Land Court—first, in adjourning the Court sine die; second, in not meeting until after the three years mentioned in the Order in Council had expired—namely, on the Ist November, 1880; and, third, in dealing with the question of withdrawal of hte rehearing in the absence of the Natives concerned—acted both improperly and illegally. In order to do justice to the Natives concerned the Government ought to introduce a special Bill ordering a rehearing of the whole of the blocks. I do not care to comment upon the conduct of the various persons whose action I have had to allude to in this memorandum. The facts are sufficient without comment. Let me only add that, if this case is a sample of what has been done under our Native Land Court administration, I am not surprised that many Natives decline to bring their land before the Courts. A more gross travesty of justice it has never been my fortune to consider. BOBERT STOUT. Bremier's Office, Wellington, 18th May, 1886. [Approximate Cost of Paper.— Preparation, nil; printing (1,500 copies), __10 Us.l

Authority: Geobge Didsbury, Government Printer. —1880.

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