1842 - Terry, Charles. New Zealand: its Advantages and Prospects as a British Colony - Part II. On Land Claims in New Zealand - Chapter I

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PART II.

ON LAND CLAIMS

IN

NEW ZEALAND.

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FORTIFIED NATIVE VILLAGE.
A Pa on the Lake Okataina on the East Coast. (see p.32)

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LAND CLAIMS IN NEW ZEALAND.

CHAPTER I.

On the measures regarding this most important subject, depend the extent of territory, and consequently land revenue, that will be available to the Government for its colonial expenditure, and for the purposes of emigration. The subject itself is little understood, even by persons resident in the Colony, nor the extent of the claims with the serious contingencies dependent on the speedy and simultaneous adjudication of them on equitable principles. There is perhaps no parallel case, in the history of colonization, to New Zealand, as to land claims; therefore, it requires more particular explanation to elucidate the whole question, in all its bearings, comprehensively, yet intelligibly.

For some years, previous to the attention of the

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PLANS OF THE NEW ZEALAND COMPANY.

government of New South Wales being called to the settlement of British subjects in the Islands of New Zealand, there were but few Englishmen, besides the Missionaries, located there, and those were principally, it may be said wholly, confined to the Bay of Islands on the east coast, and Hokianga on the western coast, and the intermediate country, on the North Island. The increasing intercourse with New-South Wales augmented gradually their numbers, and from time to time, tracts of land were purchased from the natives by the settlers, for the purposes of cutting the timber for the Sydney market, and for cultivation. In the year 1836 their numbers induced them to petition his late Majesty, William IV. for the protection of the Crown as British subjects, in consequence of which the attention of Parliament was called to the subject by Lord Glenelg, in 1837. The knowledge of this intention of the English Government to adopt some legislative measures regarding New Zealand, as soon as it was known in New South Wales, first directed the attention of capitalists and others to acquire land in New Zealand; which increased when it was ascertained in the year 1839 that a bill was brought into the House of Commons to sanction the proceedings of the New Zealand Company, which was only withdrawn at the request of the Secretary of State for the Colonies, from the assurance that the Government intended some immediate measures regarding New Zealand that would render the bill unnecessary. It was then, in addition to the intelligence of

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PURCHASES FROM THE NATIVES.

the energetic and extensive plans of the New Zealand Company, that the rush of speculators took place to the colony from New South Wales, in the latter part of the year 1839, when numbers of vessels from Sydney, with barter goods, arrived in all parts of New Zealand to purchase land from the Aborigines. Such was the eagerness for speculation, that deeds of conveyance were drawn in Sydney, in English, with blanks for the boundaries, to ratify the purchase from the natives, to whom this document was explained, or pretended to be explained, by persons acting as agents for the real purchasers in New South Wales, who were very frequently imperfectly acquainted with the native language, as well as ignorant of the laws and customs among the tribes regarding the tenure of land. Thus, in many cases, the natives were quite unconscious of what they had really conveyed by these ready-made deeds, and the sequel has discovered that the same tract of land has been sold over and over again, and is now claimed by many different persons, all asserting the validity of their purchases by deeds. Not only was the North Island and the parts already well known, the object of these purchasers and speculators, but the Middle Island, almost unknown, as it had been, till then, unfrequented, was eagerly sought after, and tracts of land larger than counties in England---defined, sometimes by latitude and longitude, or by the course of large rivers,---were sold or conveyed for comparatively a trifle, on half a sheet of paper. When Captain Hobson arrived as Lieutenant-

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PROCLAMATION AS TO LAND CLAIMS.

Governor at the Bay of Islands, in January 1840, he issued a proclamation---which had been issued at Sydney on the 14th January 1840,---dated 30th January, declaring, "That her Majesty, taking into consideration the present as well as future interests of her Majesty's subjects, and also the rights and interests of the chiefs and native tribes of the islands of New Zealand, does not deem it expedient to recognize any titles to land in New Zealand, which are not derived from, or confirmed by her Majesty: but in order to dispel any apprehension that it is intended to dispossess the owners of land, acquired on equitable conditions, and not in extent or otherwise prejudicial to the present or prospective interests of the community; her Majesty has been pleased to direct that a commission shall be appointed, with certain powers, to be derived from the governor and legislative council of New South Wales, to inquire into and report upon all claims to such lands, and that all persons having such claims, will be required to prove the same before the said commissioners when appointed :---and that all purchases of land in any part of New Zealand, that may be made from any of the chiefs or native tribes thereof, after the date of these presents, will be considered as absolutely null and void, and will not be confirmed or in any way recognized by her Majesty."

This proclamation occasioned the immediate cessation of all such purchases, except by some parties in Sydney who conceived the Government had no legal grounds for such interference; but at the

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GOVERNOR HOBSON'S LETTER.

same time, in New South Wales and the Colony, it was discussed with great interest and anxiety, and considered as an untenable exercise of the royal prerogative. Meetings were held, and associations formed by all purchasers of land, for the purpose of opposing any legislative measure in New South Wales, calling in question such purchases made from the natives, and likewise in order to represent their case to, and remonstrate with, the Home Government.

Lieutenant-Governor Hobson, in a despatch to the Marquis of Normanby from Bay of Islands, in February, 1840, mentions this important subject.

"Of society here, there can be no better account rendered than may be found in the reports already before your Lordship; but a material change has taken place within these two years, in the avocations both of the European and Native population. The passion for land-jobbing now pervades every class; all considerations appear to be absorbed in this one object. Tracts of country, in some cases of five hundred square miles, arc claimed by single individuals, and it not unfrequently occurs in the late purchases, that very fair equivalents have been given to the natives for these possessions. This mania for land-jobbing is by no means confined to Europeans, but has extended to the natives, who have proved quite as ready to sell their lands as the Europeans were to buy.

"The proclamation I issued by your Lordship's order, has had the effect of stopping the traffic; but

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GOVERNOR HOBSON'S LETTER

extensive mischief had been done before its promulgation, and in some cases the disaffected white people have used it as a means of exasperating the native mind against the Government: although the more industrious portions of the New Zealanders receive it as a proof of the advantages my presence will confer upon them.

"I greatly fear that the conflicting claims for land that will be brought under the consideration of the commissioners, who are to be appointed to investigate them, will create a violent ferment through every class of society, both Native and European. I know perfectly well the former will resist the execution of all awards that may be unfavourable to them; and that it will require a strong executive, supported by military force, to carry such decisions into effect. The grounds for contention are manifold. First, considerable tracts of land were sold, some years ago, for a sum which bears no proportion to the present price, and this exasperates the natives, and impresses on their minds, that formerly they were in every case over-reached and cheated, whilst in fact the old purchases were quite as just as those of a more modern date; the former being without the hope of British interference, whilst the latter were effected with a certain knowledge that her Majesty's government would extend to this country the benefits of civil institutions and legal protection. It would be needless to attempt explanation to the natives of these subtleties, which are infinitely beyond their comprehension.

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TO THE MARQUIS OF NORMANBY.

"The treatment of fraudulent claims may be easily disposed of, by restoring the land in all such cases to the original possessors, but there will be a great many most unreasonable demands made for restitution, and much discontent will prevail if they are rejected.

"Another very fruitful germ of discord will be found in the conflicting claims of the Natives to land in right of conquest, all of which have arisen from the suggestions of interested Europeans.

"According to native custom, war has not conquest for its object. But when the tribes under Shungee overran the country about Kaipara on the west, and Wangaroa on the east, Englishmen, who were on the spot, endeavoured to secure for themselves the valuable forests of those districts, and they treated for possession of them with the conquerors; remonstrance followed from the beaten party, and the most inflammatory means were resorted to, to induce the tribes under Shungee to defend their acquired right. The natives were tired of war; Shungee had received a wound, of which he afterwards died; so that a compromise was easily effected, by which certain Englishmen were permitted to exercise proprietary rights over these forests. Nothing could be more loose than their titles; but they were supported by violence and threats, and much of the land has since passed into other hands.

"Since the passion for jobbing has been excited in the native mind, by the comparatively high price

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BILL TO APPOINT COMMISSIONERS.

of land, these old claims have been revived, and it frequently happens that the same lands are sold by the conquerors and the vanquished respectively to different Europeans. The natives have a feeling of pride in these matters, and they each defend the right to sell with extraordinary pertinacity."

In the spring of 1840, a bill to carry out the previous proclamation of her Majesty, "for appointing commissioners to inquire into claims and grants of land in New Zealand," was brought before the legislative council at Sydney by his excellency the governor, Sir George Gipps. Every effort was made to oppose the passing of the bill, and counsel were allowed to be heard against it between the first and second reading. On the second reading of the bill, Sir George Gipps entered fully into its principles and details, explaining the national law.

The bill, he said, was founded on three principles. First---that the uncivilized inhabitants of any country have but a qualified dominion over it, or a right of occupancy only, and that until they established amongst themselves a settled form of government, and subjugate the ground to their own uses by the cultivation of it, they cannot grant individuals, out of their own tribe, any portion of it.

Secondly---that if a settlement be made in any such country by a civilized power, the right of preemption to the soil, or in other words, the right of extinguishing the native tribe, is exclusively in the government of that power, and cannot be enjoyed by individuals without the consent of their government.

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CASE OF THE PORT PHILLIP ASSOCIATION.

Thirdly---that neither individuals nor bodies of men, belonging to any nation, can form colonies, except with the consent, and under the direction and controul, of their own government: and that from any settlement, which they may form without the consent of their government, they may be expelled.

It was contended, that these principles were in accordance with the laws of nations, and that, likewise, it had been the practice of England, in the first formation of the American colonies.

By the treaty of peace with Great Britain, on the declaration of the independence of the United States, the former relinquished all claims, not only to the government, but to the proprietary and territorial rights of the United States. By this treaty, the powers of government and the rights to the soil, which had been previously in Great Britain, passed definitively to the United States.

These principles have since become American Law, which maintains that the right of pre-emption to the soil is exclusive to the Government, and that no American subject can hold or acquire land, from the Indians, without the sanction and confirmation of the Government.

In 1885, some parties in Van Diemen's Land entered into an association, to establish a settlement on the southern coast of the continent of New Holland, and as the land was without the limits of the Government of New South Wales, on the eastern side, and not within the boundaries of the new province of South Australia, on the western side,

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CASE OF NEW ZEALAND COMPANY.

it was conceived, that such proceedings did not interfere with the rights and privileges of Great Britain. But Sir Richard Bourke issued a Proclamation declaring all such purchases to be invalid. After consulting the first law authorities in England, the Association was advised, that the grants obtained from the natives by the Association were not valid, for it had been a principle adopted by Great Britain, as well as other European States, that the title which discovery conferred on the Government, by whose authority or by whose subjects such discovery was made, was that of the ultimate dominion and sovereignty over the soil, even whilst it continued in the possession of the Aborigines.

Counsel likewise gave their opinion that Government could expel the Association from the settlement, for the Crown has the power to prevent such settlement being made by British subjects. The land of this Association now forms the counties of Grant and Bourke in the district of Port Phillip.

Sir George Gipps then referred to the more recent case of the New Zealand Company, and the correspondence which took place between them and the Secretary of State for the Colonies, in consequence of a letter from the latter, requesting to know whether the Directors were parties to an agreement with persons forming an expedition for the establishment of a settlement and government at Port Nicholson; and, in consequence of which, the Company took the opinion of counsel, who declared such proceedings to be quite illegal.

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REASONS FOR THE BILL.

The chief argument against the bill was, that over any transactions, between Englishmen and the natives, previous to Her Majesty taking possession of the Islands of New Zealand, the British government could not exercise any legal authority, or annul, retrospectively, any contract with them; that the independence of New Zealand had been formally acknowledged by the British Government by the recognition of a national flag, and the appointment of an English Vice-Consul, Mr. Busby, at the Bay of Islands.

But the declaration of independence was made only by a few tribes, in the Bay of Islands, at the suggestion of Mr. Busby, who acted without any authority either from the Governor of New South Wales, or from the Secretary of State for the Colonies, and was an act in consequence of the Quixotic proceedings of the Baron de Thierry, declaring himself Sovereign of the Middle Island. Although the declaration stated, that the native chiefs intended annually to meet in conclave, discuss and pass laws, it was well known, that they did not even understand the real meaning of their declaration of independence. In reply to this declaration by the chiefs, the British Government, through Lord Glenelg, merely observed, that "His Majesty will not fail to avail himself of any opportunity of shewing his good will, and of affording to the chiefs such support and protection, as may be consistent with a due regard to the just rights of others, and to the interests of His Majesty's subjects."

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REASONS FOR THE BILL.

The recognition of a distinguishing flag is no concession or granting of immunities. New South Wales has been permitted to use a distinguishing flag, but the fact of her coasters sailing under it does not constitute her an independent power, and in truth, it may be well conceived, that the permission, to use these colonial flags, was for the mutual convenience of the shipping of the colonies to distinguish each other.

Although the proceedings, of the few chiefs in the Bay of Islands, rendered it necessary for Captain Hobson to enter into negotiation and treaty with them, for the concession of the Sovereignty of the North Island, yet the Middle and Southern Islands were taken possession of, in virtue of the right of discovery. That such a measure, as the bill proposed by Sir George Gipps, was considered not only perfectly constitutional but necessary, by parties well qualified to determine, will appear from the following extracts from the reports of the Committee of the House of Commons, appointed in the year 1837 to enquire into the condition of the Aborigines in British Colonies. "So far as the lands of the Aborigines are within the territories, over which the dominion of the Crown extends, the acquisition of them by Her Majesty's subjects, upon any title of purchase, grant, or otherwise, from their present proprietors, should be declared illegal and void."

On the 4th August, 1840, the bill passed the Legislative Council of New South Wales, and became law in the colony and its dependency New Zealand.

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PREAMBLE AND CLAUSES

The Preamble to the bill states very minutely its intent and purpose--

"Whereas, in varioous parts of New Zealand, tracts or portions of land are claimed to be held by various individuals by virtue of purchase, &c. either from the chiefs or other individuals of the Aboriginal tribes inhabiting the same; and whereas no such individual can acquire a legal title or permanent interest in any such tracts or portions of land, by virtue of any gift, purchase or conveyance by or from the chiefs, &c.; and whereas, Her majesty hath by instruction under the hand of one of Her Majesty's principal Secretaries of State, dated 14th August, 1839, declared her royal will and pleasure not to recognize any titles to land in New Zealand which do not proceed from, or are not, or shall not be allowed by Her Majesty: and whereas it is expedient and proper to put beyond doubt the invalidity of all titles to land within the said Islands of New Zealand, founded on such purchases, &c. from the said uncivilized tribes or Aborigines of New Zealand. Be it therefore enacted, &c."

"Clause 1. That all titles to land in New Zealand which are not, or may not be hereafter allowed by Her Majesty, are and shall be absolutely null and void.

"Clause 2. Her Majesty having been pleased to declare her gracious intention to recognize claims which may have been obtained on equitable terms; the Governor is empowered to issue one or more

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CLAUSES OF THE BILL.

commissions and appoint Commissioners to hear, examine and report on all claims to grants of land in New Zealand.

"Clause 3. The Governor may appoint Secretary to Commissioners.

"Clause 4. The Governor may refer, so often as he shall think fit, all claims to the Commissioners, and all claims to be made within six months, or else null and void, unless good cause shewn of inability to prefer the claims within the time specified.

"Clause 5. Commissioners, in hearing and examining all claims, and reporting on the same, shall be guided by the real justice and good conscience of the case, without regard to legal forms and solemnities, and shall direct themselves by the best evidence they can procure, or that is laid before them, whether the same be such evidence as the law would require in other cases or not. The contract between the natives and original purchaser, without reference to any subsequent purchaser, to be only inquired into, and to set forth the number of acres the purchase money would be equivalent to, according to the rates paid in schedule D. Commissioners, if satisfied, to recommend grants, set forth the situation, measurement and boundaries; but no grant to exceed in extent two thousand and five hundred and sixty acres; nor to comprehend any head land, promontory, bay or island that may be required for defence, or for the site of any town, nor any land

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SCHEDULES OF THE BILL.

situate on the sea shore within one hundred feet of high water mark.

"Clause 6. Compensation to be given for such land as may be required for the purposes of government, at the rate of not less than five, nor mare than thirty, acres of land, for every acre required to be so reserved.

"Clause 7. Governor to appoint meetings of Commissioners.

"Clause 8. Power to Commissioners to summon witnesses.

"Clause 9. Witnesses not appearing, or refusing to give evidence, can be imprisoned for any time not exceeding twenty-one days, or pay any fine, not exceeding one hundred pounds, as the Commissioners shall impose.

"Clause 10. Salaries to be paid to Commissioners as the Governor shall direct.

"Clause 11. Fees according to Schedule C. to be received by Secretary and paid into Colonial treasury.

"Clause 12. Saving the right and prerogative of her Majesty.

(Signed) GEORGE GIPPS,
Governor."

SCHEDULES.
A. Commissioner's oath.
B. Secretary's oath.
C. Fees to be received by Secretary.

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LETTER OF SIR G. GIPPS

D. Rates at which the purchase money is to be calculated per acre.

and fifty per cent, above these rates for persons not personally resident in New Zealand, or not having a resident agent on the spot.

Goods when given in barter to the Natives for land to be estimated at three times their selling price in Sydney at the time.

After passing of the Bill, Sir George Gipps thus writes to Lord John Russell.

"Government House, Sydney, 16th August, 1840.

"My Lord,---Having in my despatch of this day's date, forwarded to your Lordship an Act passed by the Legislative council of this Colony, to facilitate the settlement of claims to grants of land in New Zealand, I think it proper to explain in a separate despatch some of the circumstances, which have attended the passing of this act through the Council.

"In prior despatches I have informed your Lordship, that speculations in land in New Zealand have been carried to great extent during the last few years, by persons either resident in New South Wales, or resorting from thence to New Zealand ;

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TO LORD JOHN RUSSELL.

which speculations or purchases were carried on even after the proclamations were issued, of which copies were forwarded with my despatch of the 9th February, 1840.

"The declared intention of Government to inquire into titles to land, and to disallow all exorbitant claims, occasioned much dissatisfaction among those purchasers or speculators: and when the act for appointing the commission to inquire into the claims was brought forward by me in Council, it was loudly denounced by the parties interested, as illegal and unjust.

"Petitions, praying to be heard against the Bill, were presented from various individuals, and the prayer of these petitions being acceded to, five different individuals were admitted to plead the cause of the petitioners before the Council; of these five persons, three were barristers, who appeared on behalf of the petitioners generally, the others were Mr. Busby and Mr. Wentworth, who appeared on their own account. Mr. Busby, the late resident, claimed somewhat more than fifty thousand acres of land, besides a township, or the site of a town in the Bay of Islands, which he valued at thirty thousand pounds. Mr. Wentworth claimed about one hundred thousand acres on the Northern Island, and about twenty millions of acres in the Middle Island, being, as he stated, the whole of that island, with the exception of about three millions of acres, which belonged, he said, to prior purchasers.

"Two entire days were devoted by the Council to

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SIR GEORGE GIPPS' LETTER

the hearing of these gentlemen; their arguments, however, had not the effect of preventing the passing of the Bill, in the shape in which I have submitted it, for the approval of her Majesty.
I have, &c. (Signed) George Gipps."

On the same day Sir George Gipps again addressed Lord John Russell as follows :

"Government House, Sydney, 16th August, 1840.
"There is yet a transaction, connected with the passing of the New Zealand Commissioners act, transmitted with my despatch of this day's date, which I feel it my duty to report to your Lordship.

"In the month of February last, seven chiefs from the Middle Island of New Zealand happening to be in Sydney, it was suggested to me by the persons who had brought them here, and under whose protection they were living, that they should be invited to sign a declaration of willingness to receive her Majesty, as their sovereign, similar in effect to the declaration which Captain Hobson was then engaged in obtaining from the chiefs of the Northern Island.

"The chiefs in question of the Middle Island were accordingly brought to the Government House, and through the medium of an interpreter, the nature of the document they were required to sign was fully explained to them in presence of myself, the colonial secretary, and several persons who claimed to have purchased land in the Middle Island, and amongst other things, it was expressly declared to

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TO LORD JOHN RUSSELL.

them, that only such purchases of land as should be approved of by her Majesty, would ultimately be confirmed.

"At the conclusion of this conference, a present of ten sovereigns was made to each of the chiefs, and they all promised to attend on the next day but one, to sign the paper which was to be prepared for them.

"On the day appointed, however, none of them appeared; and in reply to a message that was sent for them, a short answer was received from one of the Englishmen, under whose protection they were, that they had been advised to sign no treaty, which did not contain full security for the possession by the purchasers of all lands acquired from the Natives. It subsequently appeared, that it was by the advice of Mr. Wentworth that they adopted this course of proceeding; and Mr. Wentworth also, when before the Council, acknowledged that he had not only given his advice, but also that he had subsequently, and after the issue of my proclamation, in conjunction with four or five persons, purchased the whole of the Middle Island, or all the unsold portions of it, from these very Natives, paying them for it 200 pounds. in ready money, with a promise of a like sum per annum, as long as they should live.

"Such was the origin of Mr. Wentworth's claim to twenty millions of acres in the Middle Island; and it was the legality and validity of this transaction that he appeared before the Council to defend.
I have, &c.
(Signed) George Gipps."