55

I.—B

Heads, on the 22nd of same month ; (3) petition of Natives assembled at Kaiapoi on the 25th March, 1874, addressed to the Speakers and members of the General Assembly then in session in Wellington; (4) petition of Ngaitahu to His Excellency the Marquis of Normanby, dated Otakou, 10th June, 1875 ; (5) the petition of John Topi Patuki to the House of Eepresentatives, reported on by a Select Committee on Native Affairs on the Ist October, 1875 ; (6) petition of Ngaitahu to His Excellency the Marquis of Normanby, dated the 12th April, 1875 ; (7) statement by H. K. Taiaroa on Judge Fenton's report on Ngaitahu petition, dated the 26th October, 1876; (8) petition of chiefs of Ngaitahu to Ministers and members of the Legislature re Middle Island purchases, dated the 25th May, 1878; (9) letter of Wereta Tainui and others, addressed to the Premier and Native Minister, dated the 21st June, 1878; (10) letter from Te Maiharoa, addressed to the Hon. Mr. Sheehan September, 1878, re Middle Island land-claims. It is perfectly clear to us that the sellers did not understand that they were parting with the whole of their interest in their land. The promises made, if they meant anything, meant that an interest in the land was reserved for them. It cannot be supposed that, with respect to the promises to establish schools and hospitals, and to promote their welfare generally, it was understood that these promises were to be completely and finally fulfilled immediately on the cession of their land; that hospitals and schools would be built and established forthwith; and that other provision for their needs would be then made as promised. It must have been meant and understood that these promises were only to be completely fulfilled in the future —that is, as the settlement of the land by the pakeha advanced, and funds accrued from its sale to European settlers. The reserves made by Mr. Mantell were merely intended as a present provision, which it was necessary to make at once, preparatory to the introduction of the pakeha settler—an instalment, as it were, on account, and one which Mr. Mantell was instructed to restrict as much as he possibly could by reducing to the narrowest limits the area of the reserves set apart by him. Those reserves were certainly not regarded, either by the Maoris concerned or by the officers who treated with them, as a fulfilment of promises made, or as satisfying the terms of the contracts entered into. These reserves were a "special provision," excepting from the sale "lands then occupied, the management of which the Maoris wished to retain in their own hands; " whereas the one acre for every ten to be reserved under the New Zealand Company's plan was to be reserved for their benefit only, but not to be subject to their management. As an instalment only, therefore, on account of the tenths could they be regarded ; and, in the case of the Otakou Block, Mr. Symonds says distinctly that the further choice of reserves was left to be decided by His Excellency the Governor. The result of our inquiry, so far as completed, has been to satisfy us that promises were made which involved a reservation for the benefit of the Native sellers of a large and permanent interest in the land ceded, which would be fairly and properly represented by one acre reserved for every ten acres sold to European settlers. No such reservation has been carried out. Had it been, it may be assumed that a fund would have been created out of which might have been defrayed the cost of establishing and maintaining hospitals and schools, and making other provision for the welfare of the Maori owners of the ceded lands as promised. We think it must be admitted that those promises remain unfulfilled. As regards schools, it would appear from the evidence that until very recently scarcely any attempt at fulfilment has been made. It is true that the obligation incurred by the Government in respect of the promise of additional reserves to be set apart for the aboriginal owners of the Ngaitahu Block was defined by the Native Land Court in 1868, when the Ngaitahu deed or agreement was referred to it; but, although the awards made by that Court have been declared by law to be in final extinguishment of the Native title within the boundaries delineated on the plan annexed to that document, it is, in our opinion, clear from the evidence taken by us— First, that the Natives interested as parties to that agreement were not aware of the fact, or of the object of such reference; second, that they were not represented or heard in Court as parties to that agreement; third, that, had they known that the whole question of that agreement was referred to a tribunal which had power under the Native Land Act, quoted in the order of reference, " to investigate the title to and interests in the Ngaitahu Block, and to make orders for the completion of the agreement upon such terms and conditions as the Court might think fit, or for the apportionment of the land between the parties interested therein as the Court might think equitable," in such case, we believe, questions would have been raised the inquiry into which would have materially affected the judgment of the Court—among others, that of the boundaries of the block, the description of which in the deed is so utterly vague, and in reference to which the evidence of the Maori witnesses examined by us is almost unanimous to the effect that they were not understood to include the Kaitorete Peninsula, or anything beyond a strip of land on the eastern seaboard, having for its inland boundary a line from Maungatere (Mount Grey) to Maungaatua, one of the boundaries of Symonds's purchase. These questions were not raised ; and, in fixing the area of the awards made in satisfaction of the promise of future reserves, the Court acknowledges itself bound by the Crown witnesses in the interpretation of the terms of the contract. We notice also that an opinion then expressed by the Judge, that the allowance of fourteen acres per head was a liberal one, was afterwards entirely changed by him, as appears in his evidence before us and in his report on the petition of Ngaitahu in 1876. Had the Maoris interested in the Ngaitahu Block realised the position in which they were placed by the reference to the Native Land Court of the document called Kemp's deed as an agreement, and that it was competent to them to bring before the Court all questions relating to the purchase which were then in dispute between themselves and the Crown, or had they been properly advised or represented on the occasion, we believe that important points which were not, but should have been, brought under notice would have received the attention of the Court. In support of our opinion we refer to the evidence on this point given by Chief Judge Fenton and Mr. Alexander Mackay. To estimate the damage sustained by the Native owners of the land through failure during so long a period to fulfil promises made by which they were induced to " put their land into the hands of the pakeha " (as they express their idea of the transaction), is a task beyond our powers. Full amends for failure or neglect in the past cannot be made in the present by assessing damages. Restitution can, however, be made; and a