CHAPTER III
[Inserted picture page]
[Image of page 107]
CHAPTER III.
LARGE CLAIMS ON MIDDLE ISLAND---REASONS FOR IMMEDIATE DECISION ON LAND CLAIMS---EFFECT OF LAND CLAIMS ON SALES OF CROWN LANDS---NECESSITY FOR INCREASED NUMBERS OF COMMISSIONERS---QUESTION AS TO SURPLUS OF LAND FROM GOOD CLAIMS---CLAIMS TO LAND BY INTERMARRIAGE OF ENGLISHMEN WITH THE NATIVES ---LANDS OF THE ABORIGINES.
In all cases, generally, of claims bearing date previous to 1838, grants will be awarded to residents, even to the maximum, prescribed in the fifth clause, of 2560 acres, or four square miles. The claims, likewise, of later date will have some proportionate award, and it is only those of very late date, on the Middle Island---which are ridiculous in extent, as they are most probably questionable in validity---that will be declared absolutely null and void:--- such as
Mr. Weller - - Sydney, for - 3,557,000 ACRES
Messrs. Catlin & Co. - - 7,000,000
Mr. J. Jones - - 1,930,000
Mr. Peacock - - - 1,450,000
Mr. G. Green, - - - 1,377,000
Messrs. Guard & Co. - - - 1,280,000
&c. &c.
A square mile contains only 640 acres, by which calculation, some estimate may be made of the above claims; some of which have been purchased at the rate of five hundred acres for a penny.
[Image of page 108]
REASONS FOR DECISION ON LAND CLAIMS.
It is, on the Northern Island, that the valid claims of great extent will be found---between the Bay of Islands and the Waitemata; and that they should be quickly and finally arranged is of most serious importance to the Colony. The delay and suspense completely paralyses the operations of every class of settlers. The resident claimants, for the most part, remain inactive and fearful, waiting anxiously the decision of the Commissioners, or rather of the Governor. This decision cannot be reckoned upon; for, by the fifth clause, the Commissioners can only recommend grants, and the last lines are---"Provided also, that nothing herein contained shall be held to oblige the said Governor to make and deliver my such grants as aforesaid, unless his Excellency shall deem it proper so to do."
There is another most urgent and cogent reason, or the speedy and simultaneous adjustment of these claims. In the localities where timber, especially be Kauri, abounds, the claimants who are resident in the lands, alleged to have been purchased from he natives, are felling the trees with reckless haste, determined to obtain as much as possible from the land they claim, whatever may be the decision of the Commissioners. With this view, numbers of
smaller trees, but which would be valuable some few ears hence, are now cut down and sacrificed, merely for the purpose of making outlets from the forests, in order to drag out, the shortest and quickest way, those trees which are now valuable; and thus the colony will be most extensively and irremediably injured in one of its most important and valuable resources.
[Image of page 109]
EFFECT OF CLAIMS ON COMMON LANDS.
The Kauri, as is well known, is limited to certain districts. It is found only in the North Island, and there, on the eastern coast, not farther south than Tauranga; and, on the western coast, not farther south than Kawia, where there are only ten trees to be found.
It is more than probable that, in a few years, this noble, splendid, useful tree will be extinct in New Zealand, and the question of land claims, and the delay in their settlement, will have been the principal cause of the destruction of the young growing trees.
When the extent and nature of these claims to land in New Zealand, with the mode prescribed by the ordinances of the Legislative Council for their settlement, are well known and understood, it cannot be anticipated that persons who may resort to the colony, as free settlers, will purchase land from the Government, at an exorbitant price, or, in fact, at any price, until it is ascertained to what extent these claims will be granted; and the same reasons and motives will influence persons in England, and prevent them from purchasing land, from the Commissioners of Emigration, at the fixed price of £l. per acre.
Viewing the subject of land claims, in all its bearings and probable contingencies, it must be considered of most vital importance to the Colony; and it is likewise very evident, that on the equitable adjustment, both as regards the Aborigines and the Europeans, in the most simple, intelligible, and above all,---the most speedy,--- manner practicable,
[Image of page 110]
NECESSITY FOR INCREASED
will depend, in a great degree, the future feeling of the Natives towards Europeans, and the prosperity of both.
There are numerous claims to land, as has been shewn, in various parts of both Islands, far distant from each other. To decide on those, the localities ought to be visited by the Commissioners, and the claims heard on the spot, on account of the evidence of the natives. If a claim is good, the Commissioners "are to set forth the situation, measurement, and boundaries, by which the said lands or portions of lands, shall or may be described in every such grant or lease, so far as it shall be possible to, and they conveniently can, ascertain the same."
The total number of the claims, when all registered, cannot be estimated at less than eight hundred, to adjudicate on which will be interminable duty for two Commissioners, the number indispensable for hearing every case, considering that they must remove from place to place, over the whole three Islands. The second clause empowers the Governor "to issue one or more Commissions," and to appoint any number of Commissioners.
The twelfth clause, with the schedule C, enacts that certain fees shall be paid by the claimants. On the filing of any claim, the sum of five pounds, various sums at different stages of the proceedings, and a sum of five pounds on the final report of the Commissioners, recommending a grant in favour of any party, not exceeding 500 acres, and for every additional 100 acres, ten shillings more, so that a
[Image of page 111]
NUMBER OF COMMISSIONS.
recommendation for a maximum grant of 2560 acres would require a fee of fifteen pounds.
For every case heard by the Commissioners, if unsuccessful, the expense to the claimant, cannot be less than seven or eight pounds, and if recommended, for the smallest grant, will be twelve pounds, and to a maximum grant, the fees incurred through all the proceedings, will not be less than twenty-five pounds. These fees will be sufficient to pay all expenses of the Commissioners, and as they are pro tanto, as the cases may be heard and decided, no further additional expense would be incurred, whether six Commissions, of two Commissioners each, were in active service for one or two years, or one Commission for ten or twelve years, which is the least possible time, on which the claims can be settled by merely two Commissioners, who are, in fact, only one as to business.
Prompt and decisive measures, therefore, should be immediately instituted by the Local Government, to settle these land claims without delay.
Four or five Commissions ought to be in operation, simultaneously, in different parts of the islands, which might easily be effected by dividing the country into districts. For instance:---Bay of Islands, to include the eastern coast, from the Waitemata to the North Cape. Hokianga, to include Kaipara and the western coast, northward of Manakao. Auckland, to embrace Manakao, Coromandel Harbour, the rivers Thames and Piako, and all the eastern coast down to Palliser Bay. Kawia,
[Image of page 112]
NECESSITY FOR INCREASED
to include the rivers Waipa, Waikato, and all the western coast down to Taranaki. Cook's Straits, could take all claims on both shores, as well as those for land in the Middle and Southern Islands. To each of these commissions should be attached, by special appointment, some respectable person well versed in the native language, and competent to examine witnesses, for the protection of the interests of the Aborigines.
To impress on the Natives, that their rights are the watchful care of the English Government, now that her Majesty has assumed the sovereignty of the islands, would be most politic and humane, and would operate most powerfully on their minds, in comparison to the conduct, which they, for so many antecedent years, have experienced from the lawless characters who have visited their coasts, taking advantage of them in all their dealings, endeavouring to dispossess them of their land, violating all their customs and observances, and frequently committing such brutal acts, as have irritated the Natives to summary retaliation and revenge, and occasional acts of bloodshed, in which, nine cases out of ten, the white people have been the first aggressors.
Lord Goderich, in a despatch to Major-General Bourke, January 1832, remarks:
"It is impossible to read without shame and indignation, the details which those documents disclose. The unfortunate Natives of New Zealand, unless some decisive measures of protection be adopted, will I fear shortly be added to the number
[Image of page 113]
NUMBER OF COMMISSIONS.
of those barbarous tribes, who, in different parts of the globe, have fallen a sacrifice to their intercourse with civilized men, who bear and disgrace the name of Christians.
"Considering what is the character of a large part of the population of New South Wales, and Van Diemen's Land; what opportunities of settling themselves in New Zealand, are afforded them by the extensive intercourse, which has recently been established; adverting also to the conduct which has been pursued in these Islands, by the masters and crews of British vessels, and finding from the letter of the Rev. Mr. Williams, that the work of depopulation is already proceeding fast, I cannot contemplate the too probable results, without the deepest anxiety.
"There can be no more sacred duty than that of using every possible method to rescue the Natives of those extensive Islands, from the further evils which impend over them, and to deliver our own country from the disgrace and crime of having either occasioned or tolerated such enormities."
The immediate hearing of all claims, as soon as practicable, should be accompanied by corresponding judgment and decision; and it should be law, that there could not be any appeal beyond the body invested with the power of judgment in the Colony. The decision, whether a grant should issue---and to what extent---for the fifth clause of the ordinance limits the recommendation of the Commissioners, unless specially authorized by the Governor, with
[Image of page 114]
QUESTION AS TO SURPLUS OF LAND
the advice of the Executive Council, should be vested in the Governor and Executive Council, and be publicly announced in the Government Gazette, within a certain time, after being reported by the Commissioners. As the cases are to be decided by equity and justice, rather than by any legal forms or technicalities, there cannot be much fear, that,--- with the investigation of the Commissioners, directed by the plain enactments of the ordinance, and the subsequent consideration of the Governor and Executive Council,---there will be many cases improperly decided. And if it were probable, it would be far better for the parties themselves, as well as beneficial to the Colony at large, that the question of claims should be finally set at rest, rather than allow appeals to be made to the Courts in England, which would only tend to keep the greater part of titles to land in New Zealand in an uncertain, valueless state for years and years to come.
Connected with the settlement of these extensive claims for grants of land, arises a question of much importance, and more particularly affecting the property and interests of the Aborigines.
It is commented on, in this section, in consequence of the variation, or rather addition, before alluded to, in the words of the clause of the New Zealand Ordinance to those of the clause in the Act of New South Wales:---"That all unappropriated lands within the said Colony of New Zealand, subject, however, to the rightful and necessary occupation and use thereof by the Aboriginal inhabitants
[Image of page 115]
FROM GOOD CLAIMS.
of the said Colony, are, and remain, crown or domain lands of her Majesty, her heirs, and successors, &c.&c."
In consequence of the Ordinance that grants to land are not to exceed 2560 acres, all claims, however valid, to a greater extent, will occasion, ultimately, a large surplus of "unappropriated"land. The natives have ratified, and are satisfied with the contract of sale of the whole land claimed by the Europeans, proved by their evidence before the Commissioners. In what light, therefore, is this excess of land from the claims to be considered?
Lord Normanby's instructions to Captain Hobson, on the acquisition, by Government, of land from the Aborigines are very clear:---
"All dealings with the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith, as must govern your transactions with them for the recognition of her Majesty's Government in these Islands. Nor is this all; they must not be permitted to enter into any contracts, in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory, the retention of which by them would be essential or highly conducive to their own comfort, safety, or subsistence. The acquisition of land by the Crown, for the future settlement of British subjects, must be confined to such districts as the natives can alienate without distress or serious inconvenience to themselves. To secure the obser-
[Image of page 116]
QUESTION AS TO SURPLUS OF LAND
vance of this rule will be one of the first duties of their official Protector."
If the Government considers that four square miles is sufficient for any individual to possess, by right of purchase from the natives, the land should revert to the Aborigines, and be considered as part of their lands, still at their disposal to the Government, who for the future can be the only purchasers. The land, if it does not pass to the alleged purchaser, in consequence of restrictive laws, remains legally and equitably the property of the Natives. It may be argued, that the Natives consider they have disposed of their rights to such land for ever, and are satisfied with their bargain: but the land must be the property of either the buyer or the seller; it cannot belong to a third party. If a claim is altogether invalid, surely the land will remain the property of the Aborigines; so ought whatever portion is disallowed by the Commissioners to revert to them by the same rule of equity. It is not the value of such lands that gives to this question its importance, and contingent consequences, but it is the impression and feeling which it will create among the Aborigines, of the character and justice of that Government, which has so recently assumed the sovereignty of their native land, and under whose laws and institutions they and their posterity are henceforth to live. The finesse and subtlety of civilized policy are unknown to the unenlightened Natives: but they have among themselves customs and laws, held sacred and inviolable,
[Image of page 117]
FROM GOOD CLAIMS.
which are truly just, more particularly as regards their territorial right and property.
Interwoven with the settlement of land claims, alleged by purchase from the Natives, is another most important subject, requiring the serious consideration and immediate decision of the Government.
Since the resort of Europeans to New Zealand, many of the settlers have intermarried with the families of native chiefs, and the latter have given dowries to their daughters of tracts of land, the husband being adopted into the tribe, and very frequently, especially if the daughter was the only child of the chief, and the Englishman a favourite with him and the tribe, the children of such marriage, have, at their birth, had likewise grants of land marked out for their future benefit, and held sacred by the "Tapu."
These alliances have been occasioned, generally, from motives of interest on both sides. The native chiefs were, in former days, anxious to secure the friendship and assistance of an European, accustomed to the use of fire-arms, to assist in repelling the attacks of other tribes, and likewise to be some protection to them, when visited by the whaling and coasting vessels, for the purpose of trade or plunder. On the other hand, the European, having neither home nor property, was glad to be received into fellowship by the Natives, and to enjoy the rights and immunities which an alliance with a native chief and tribe would insure to him.
The lands so apportioned are held sacred by the
[Image of page 118]
CLAIMS TO LAND BY INTERMARRIAGE OF
Natives, as if the property of their own tribe; and consistent with the respect professed to be paid to the possessions of the Aborigines by Government, these marriage portions, and gifts to children of such marriages between Englishmen and the native women, must be equally respected and guaranteed. These settlers located in New Zealand, many years before it was ever anticipated that it would become an English Colony, under an organized system of Government. They made it their adopted country by these marriages, and submitted to all the hazards and privations of such a life, and they now come before the British Government in a twofold character,---as Englishmen---and in right of their estates by marriage with a Native.
The rights of Europeans, under such circumstances, should at once be defined and adjusted, and there should be also some legislative enactment, respecting any future similar marriages with the native women, entitled, by their rank and birth in their tribe, to landed property. In the course of time, there will be many such alliances, as the Colony becomes more populated with Europeans, for the latter may be induced by the property, and the Natives are now so perfectly sensible of the very great benefits resulting to them from the vicinity of settlers, that they will be very desirous to induce the abode of Englishmen among them.
The land belonging to the Aborigines, whether desired by the Government, or alleged to have been already purchased from them by others, claims the
[Image of page 119]
ENGLISHMEN WITH THE NATIVES.
most serious consideration and just protection by Government; for the Natives of New Zealand, in their territorial rights and possessions, are different from most other savage states.
There is no absolute native monarchy in New Zealand, nor is the land the property in common of the whole nation. Each distinct tribe has its own district, and never leaves it unless to add to it by conquest, or from being driven from it by defeat. If a tribe have the whole of their district taken from them by land claimants, and by the Government, assuming they do receive some compensation, what is to become of them? They cannot retire into adjoining districts possessed and inhabited by other tribes, nor can they he drafted in small bodies throughout the islands, among all the tribes, which might be accomplished, if the Natives removed were merely members of one united nation.
The least encroachment on the lands of other tribes, by location and cultivation, would immediately rekindle ancient feuds, and occasion repetition of former scenes of bloodshed and extermination. No endeavour should be made to influence them to part with their land, without reserving to themselves an extent sufficiently ample to maintain the whole of their tribe, and the probable increase of their population, now that those sanguinary and frequent wars, which tended continually to diminish, and in some instances to annihilate a tribe, have happily, since the establishment of British Government, wholly ceased.
[Image of page 120]
LANDS OF THE ABORIGINES.
The minimum reserve of land for each tribe, could easily be regulated, according to its numbers, and they should not be compelled to part with any portion of land, that they would undertake to cultivate; for as agriculture, although now in a rude and imperfect manner, is their natural inclination and pursuit, they may be very soon induced, by the example and observation of the farming operations of new settlers, to avail themselves of the implements of husbandry, and exert themselves in a greater degree to the tillage and cultivation of their own lands.
To lead the Natives to such simple and innocent pursuits, is the surest and best means of civilizing them, and rendering them contented and happy, under the very great change of their circumstances, as well as useful members of a Christian Colony.
