151

G.—2.

that the Muaupoko had decided to locate the section at Ohau. I was dissatisfied, and did not consent. I wired to Lewis. . . ." (Page 369, ibid.) :"I told him that Kemp wanted us to take the land at Ohau, and asked him to urge Kemp to place the land near Raumatangi. . . ." (Page 370, ibid.) :" He sent for the agreement. Next morning he came to our house and told me I was right about the parcel of land being near the Horowhenua Lake, and showed the telegraphic copy of the agreement, and said he would ask Kemp about it. After that I saw Kemp. He told me he had seen Lewis, and it was settled." (Page 381, ibid.): "After Kemp had told me that he had agreed, Lewis also told me that Kemp had consented. . . . The only business of our meeting in the Courthouse was the settlement of the boundaries. Kemp had agreed to the location of the land at Raumatangi outside the Court. Lewis had also agreed, and so had I." (Vol. 33, page 2, ibid.) : "Kemp and Lewis informed the Court that the location of the parcel at Raumatangi had been settled, and that the boundary towards the Hokio Stream was to be 2 chains away from it . . ." (Vol. 32, page 375, ibid) : "... I heard Wirihana say outside the Court that it (Ohau) would go back to the people, as we had selected Raumatangi section. Wirihana was the only person I heard say this, but there were others present." (Vol. 33, page 4): ". . . The talk about Ohau going back to the people was immediately after the settlement of No. 9. I asked what would be done with the other section, and Wirihana replied that it would go back to the tribe." (Ibid., page 6) :". . . After the order was made the matter was settled, and we had no further claim on Ohau." (2.) Macdonald, although in communication with Nicholson, is quite unaware of all this. Assuming Nicholson's story to be true, McDonald must be stating what is directly opposite to the truth, when he says, " I still adhere to my statement that Lewis refused in express terms to me to select either section." On the contrary, Lewis, according to Nicholson, urged Kemp to give No. 9, and expressed himself satisfied with the choice of that subdivision. (3.) Nicholson also tells (showing that the matter was settled) that Lewis asked for a list of names (for Raumatangi). He also (ibid., p. 6) gives an account of a proposal by Wirihana, in 1890, that they should exchange, so as let Raumatangi revert into Warena's share of No. 11. (3.) The evidence of Nicholson, given above, flatly contradicts McDonald's story, that No. 9 is never decided on to this day. It may be remarked that, even apart from Nicholson's contradictions, the counter-claimants would have a great difficulty in explaining how it is that (if, as they say, 14 and 9 were given as alternatives), there is no evidence at any time between the years 1886 and 1896 of any attempt on the part of the registered owners to induce the descendants of Te Whatanui to choose. That the Muaupoko (who, according to the counter-claimants' story, were to have whichever subdivision was rejected) should have been willing to let the selection be postponed for ten years is remarkable. (4.) (Vol. 33, page 5) : "I never heard any of our party, either the direct or the collateral descendants of Te Whatanui, decline to say whether they would have Raumatangi or Ohau. If any of them had said so I would have heard it. None of them have ever said they would not have Raumatangi. I have never heard any of our party say that they had not made up their minds whether they would have Ohau or Raumatangi." (Ibid., page 8): "If Kemp had persisted in our having the Ohau section, I would have appealed to Parliament." This is a very different thing from McDonald's story, that the descendants of Te Whatanui were refusing to have either section in order to make an excuse for appealing to Parliament to get the judgment of 1873 reopened. On the contrary, according to Nicholson's story, they were asking for Raumatangi, and would have appealed to Parliament to get Raumatangi, if it had been refused. McDonald's story, besides being contradicted by Nicholson, is inherently absurd. The Muaupoko were not bound to give a single acre (vide McDonald's evidence, Horowhenua Commission, page 75), yet they offered Ohau, and then, when this was objected to, Raumatangi. Lewis, the representative of the Government, was present, and knew the Muaupoko were behaving handsomely. Did McDonald really believe that the Government were likely to allow the descendants of Te Whatanui to appeal successfully to Parliament, to reopen the judgment of 1873 (not merely, be it observed, to get Raumatangi), when, according to McDonald's own showing, their only ground of complaint was their own refusal to accept either of two successive handsome offers from people who were not bound to give them anything.

Table B. Showing that up to 1896 (which McDonald admitted in cross-examination by Beddard was the date when he first heard of a trust as to No. 14) his story was the same as Nicholson has told throughout—namely, that No. 9 was definitely selected in 1886 :— (1.) Nicholson's story before the Royal Commission and in the present case is given above (vide Table A). It is exactly the same as he gave at Otaki (Otaki Appellate Court book, pages 36 and 37) : " We discussed location for this 1,200 acres at Palmerston before the Court sat. Kemp desired the land located at Papaitonga. I objected. We afterwards met in a hotel, and asked Kemp to be present. I, Hitau, Emma, Hare Pomare, Piri Watene, Heni Kipa, Kipa Whatanui, Karanama Kapukai. Kemp came to the meeting. I pointed out to him that the land should be located where our cultivations were. He refused. When Mr. Lewis arrived I told him ;he sent for agreement signed by Kemp, and the Court fixed position of land where it now is. Lewis then asked us to send in our list of names." (1.) At Otaki McDonald was called as a witness by Nicholson's side, and gave evidence soon after Nicholson, and precisely confirmed Nicholson's story (Otaki Appellate Court book, page 47): "He " (Kemp, addressing Muaupoko) " said it was not because he considered that Ngatiraukawa had any right, but simply on representation of Sir Donald McLean ; that Ngatiraukawa, Watene, and others were on the ground, and there was no means of getting them off. He then appealed to Muaupoko to make good his promise to Sir Donald McLean. Muaupoko at once agreed, and 1,200 acres was selected at Papaitonga, put on a tracing by Palmerson, and handed to Lewis as a complete fulfilment of Kemp's promise to McLean. Lewis afterwards endeavoured to persuade Nicholson to accept the 1,200 acres. I understood them to object to locality ; they wanted it adjoining the 100 acres. Lewis told Kemp this ; locality afterwards altered. . . ." By Baldwin : " The meetings I have referred to lasted over three weeks. I was present at many of them." In his Otaki story McDonald admits what he now denies—namely, that the descendants of Te Whatanui wanted No. 9, and that Lewis urged Kemp to give it to them. The words " locality afterwards altered " mean, of course, that a new locality was substituted, not offered as an alternative. And the obvious inference from the words is that the substitution of No. 9 was consequent upon the communication by Lewis to Kemp of the wishes of the descendants of Te Whatanui. (2.) Again (Otaki Appellate Court book, Vol. 14, pages 315, 316) : " There was very great discussion about 1,200 acres in fulfilment of an agreement between Kemp and Sir D. McLean. It was for successors of Te Whatanui. Ngatiraukawa would not accept the 1,200 acres proposed to be given, and another 1,200 acres was given, and Kemp kept the first 1,200 acres." These words can only have one meaning. The first 1,200 acres (Papaitonga) is never "given" at all, but objected to by the Ngatiraukawa while it is merely proposed to be given, and accordingly kept by Kemp. The second 1,200 acres is definitely "given." And, moreover, distinguishing phrases are used ; Papaitonga is "kept" by Kemp; Raumatangi is "given." To make these words fit in with McDonald's present story the same phrase " given " or " kept " (if, indeed, " kept" by a great stretch of language is to mean " put in Kemp's name in order to be given ") should be used of both subdivisions ; instead of which a clear distinction is drawn between their respective destinations; one is "given," the other is "kept."