13

I.—3c

were residing permanently on this land, the principal pas, kaingas, maraes, and urupas were on Tunapahore, the hilly country of Kapuarangi being occupied for the most part only during the hunting and fishing seasons." Of course, if that is true, it disposes of the whole of my friend's case, as the joint occupation by both was practically at Tunapahore, which seems to be common ground, which divided two admitted territories, and the hilly country was only occupied during the hunting and fishing seasons. "No definite boundaries appear to have been laid down for the purpose of locating the interests of the several owners, nor was there any boundary between the blocks now known as Tunapahore and Kapuarangi." With regard to Kapuarangi they vary the decision and divide the blocks. In the meantime I believe part of Kapuarangi had been sold, and that would leave Takaputahi as it was, because in the meantime these people had got the whole benefit of the Kapuarangi lands which had been sold. Now, the Committee has had some little experience—in fact, I rather feel in many ways ashamed of referring to some of these matters because I know they must be at least as familiar to the Committee as to me —but there is this to be said : that every member of the Committee must know—as my friend must know —that when you come to investigate what is the real test, occupation as the source of ownership, you find one party alleging that they have been in occupation and the other party alleging that they have been in occupation, and each party giving reasons why, if there has been joint occupation, the joint occupation shall not count against them. Here you find each party giving divers reasons —possibly honestly, though personally I doubt it; what I mean is that it is mere inventive genius— that is hardly fair; but it is a warped tradition they introduce on both sides when they claim joint occupation. When you find joint occupation, then, unless you can accept one clear explanation and can discard the other explanation, the only safe way to act is as the Courts have acted in this case. I say the Judges of the Courts have treated the joint occupation as a joint occupation ah origine, or a joint occupation so long ago as to be the foundation of the title. When you find that the two peoples have intermarried, and the circumstances given in detail in these judgments, then you have the basis of a friendly, joint, and common occupation established firmly by the intermarriages, which is the real, and probable, and common-sense root of the title; and thus the Court proceeds, after having ascertained that, and being unable to accept the doctrine of either as explaining the joint occupation, to award the blocks as far as possible in equal shares. That is what the Commission did. It is quite true that the Commission has accepted the explanation of the joint occupation in favour of Ngaitai, whereas the Appellate Court accepted the explanation of joint occupation put forward by Apanui; but stilf the joint occupation is there, whichever explanation you take. My learned friend says the Apanui only give an occupation of thirty-three years, from. 1855 to 1888 : still it is there, and it disposes of the ground of ignorance of the pas, because they were there and must have known of them, and if they did not know they ought to have known, because they were there; so that the ignorance of the pas built by Ngaariki does not appear to have been considered at all as of great weight by Judge Seth-Smith, as it would have been under other circumstances if two peoples were claiming unoccupied land. The true solution, I venture to suggest, is this: that Ngaitai had been away admittedly after the truce of 1858, and therefore they did not have the local knowledge which the Apanui, who lived on the ground, necessarily had; but that they had that local knowledge immediately precedent was very plain from the arguments my friend addressed to you. lam not going to dilate upon the obvious difficulties which must be in the way of an endeavour to obtain a new official hearing. Supposing this Commission's, and Judge Mair's, and the Appellate Court's decisions are all reversed by some new finding, who is going to be satisfied by that? Certainly not I and those I represent for the moment, and I cannot see how we could fail to make and establish a powerful case for further intervention by this Committee. I am not going to dilate on that, because it must be obvious, and it is no part of my business to emphasize a matter which must be perfectly obvious. Here you have had since 1885 a continuous course of inquiry which, with the exception of Judge Scannell's with whom his assessor did not agree, and whose judgments were reversed, has established a joint ownership of these three blocks, treating the three as one block, and you find that confirmed by the Commission, and the whole course of the litigation is in favour of the joint occupation and the rights of the Ngaitai. I think, however, if Ido not refer further to that, that I ought to inform the Committee, first, that the Land Transfer titles were issued after the report of the Commission —that is to say, the matter was apparently put an end to by the delivery of the Land Transfer title; and, second, that the Ngaitai title has been leased to Europeans. I do not say that ought to stand in the way of justice —certainly not; but it certainly should be a very grave consideration before the case is reopened to see where justice lies. If my learned friend could satisfy the Committee that the evidence was all one way —that these Judges had been perverse, that a monstrous injustice had demonstrably been done—then I should not have a word to say, because justice must be done. But that is not what he is seeking. He is another inquiry to see where justice lies. To do that I maintain that he must establish something a great deal more than a prima facie case. He takes, or* his clients take, their view of the title. They say, " We are the Ngaariki—we are their descendants —and we can prove that Ngaitai never had any right." Ngaitai can say, "We are the original owners, and we can prove that the Apanui never'had any right." Well, some on* has to decide between them. The answer is, that is the very matter which the several Courts inquired into, and which, it was hoped finally, the Commission inquired into. The fact of joint occupation was not in dispute, nor was it in dispute that these pas had not been built by either party. Between these two cases, as in all Maori cases of title, somebody has got to decide and somebody has got to be dissatisfied. It may be, for all I know,' that Apanui has the better case, though I say Ngaitai has; but that proves nothing. No new evidence is suggested, no new matter is suggested, nothing is suggested as to the incompetence of the tribunal; but who was to decide? Certainly, in the first instance, the tribunal which is set up by Parliament to settle and determine such questions. It has been settled and determined,