E—No. 1

OPINIONS ON NATIVE TENURE. I am fully of opinion that the admission of the right of slaves who had been absent for a Ion«--period of years, to return at any time, and claim their right to land that had belonged to them previously to their being taken prisoners of war, and which before their return, and when they were in slavery, had been sold by the conquerors and resident Natives to third parties, would establish a most dangerous doctrine, calculated to throw doubts upon almost every European title to land in this country, not even excepting some of the purchases made by the Crown ; would constantly expose every title to be questioned by any returned slave who might assert a former right to the land, let the period be ever so remote ; and would prove a source of endless litigation and disagreement between the two races, a result which must soon stop the progress of civilization amongst the Natives, so essential to their amelioration.— [Reports to Governor Fitzroy : in Pari. Pap. Bth April 1846.] vin.—Mr. George Clarke, formerly Chief Protector of Aborigines. If, as is the general impression of all who have given their attention to this subject, the natives emigrated at different periods, we have at once a clue to the origin of titles. Each migration landed, subdued, and laid claim to a certain district now claimed by their posterity. Each party would most probably acknowledge a leader, either nominated or assuming such character by virtue of superior prowess, who would actually be considered as the first Chief of the iwi or tribe. His children, with a portion of the iwi or tribe who might attach themselves to each particular child, may be considered as giving rise to the different hapu, or lesser tribes. His children and those who attached themselves to them formed separate hapus: who, although a part of the original family, would form a separate and distinct community: uniting, however, in times of war to repel the common enemy, but claiming and exercising independent interests in the soil in times of peace. * * Bravery in war, and consequent power and rank as a Chief, will not determine the individual to be a great find owner. A man miy be a great general and a small landowner; hence numbarless mistakes have arisen among Europeans, who thought themselves especially safe in purchasing laud from a powerful chief. * * The Chiefs of every tribe or hapu, as well as the head of every family belonging to the tribs or hapu, have distinct claims and titles to land within their respective districts. At the sams time it must be remembered that they have a joint interest in many of the lands. The particular claims of the Chiefs, hapu, or families are to lands either subdued or brought into cultivation, or upjn which they have exercised some acts of ownership: as lands where they have bean accustomed to procure flax, or erect weirs for eels, or where they have built a substantial house. In such, cases they claim a particular property: none but the person so claiming can give a title to the land, nor can he be dispossessed thereof. He may forfeit his right by killing, adultery, or min-ration to a different tribe and district. * * In this way families hold and cultivate their ground, enlarging their individual cultivations from time to time, thus establishing an indisputable title to such lands as their special and particular property. In other respects their title is mire general: the hapu and families claiming in common with the principal Chiefs what mty be termed their waste lands. But even here they must be able to substantiate some sort of title, such as having been the first discoverers, kindled ovens, built canoes, or exercised soma other act of ownership which gives them the preference over such lands. The families have in common with the Chiefs the right of keeping pigs, gathering flax, snaring pigeons, catching rats, ducks, digging fern root, &c. Every individual of the tribe having these privileges in comrmn, but still acknowledging the right of some particular family or individual member of a family to dispose of such property : that is, as president, head of the family, or Chief of the tribe or hapu to make the first proposal of alienation; yet they could not consider the purchase valid without the consent of the majority of the principal men of the tribe. Lands that are thus possessed in common, involving the interests of so many claimants, are exceedingly difficult to purchase, and may be reckoned as amr>ng the mo3t fruitful sources of their quarrels and disturbances. It frequently happens that two Natives, equally interested in the same lands, disagree on the question of its disposal. Numberless animosities originate from thi» source. * * To obtain a specific title to lands held in common, there must be some additional circumstance* to support the pretension; first discovery of trees —shooting pigeons—constructing eel weirs—dio-o-unr fern root —making a road—receiving a wound—losing a friend—recovering from sickness—all or any of these acts give an undeniable right to special property in land heretofore considered common. * * Conquest, unless followed by possession, gives no title. Were the Ngapuhis to claim the right of selling or exercising the sovereignty over the districts of the Thames, Kaipara, or Waikato in virtue of their former conquests, their pretensions would be treated as contemptible and absurd : and so distinctly is this principle recognised, that I have no doubt that any attempt to support and maintain the validity of titles derived from conquest only, would be met by a most determined resistance even if attempted by Her Majesty's Government. I have known slaves tenaciously maintaining their territorial rights while in a state of captivity: but I never knew a master to claim by virtue of his slave, or attempt to advance any pretensions founded on the capture of a landed proproprietor. I have had large offers of land for sale by natives still in captivity, and have been warmlyreproved by these men for doubtimj the validity of their title.

NATIVE TENURE. Commissioner Spain.

George Clarke, Esq.