1861 - Martin, W. Remarks on 'Notes published for the New Zealand Government'... and on Mr. Richmond's Memorandum on the Taranaki Question... - REMARKS ON MR RICHMOND'S MEMORANDUM, p 30-47

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  1861 - Martin, W. Remarks on 'Notes published for the New Zealand Government'... and on Mr. Richmond's Memorandum on the Taranaki Question... - REMARKS ON MR RICHMOND'S MEMORANDUM, p 30-47
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In the four propositions here stated as conveying the substance of my remarks, there are some inaccuracies. In the first, Mr Richmond speaks of "the territory of the Ngati awa in Taranaki", and of the right of "the whole tribe"; I have intended all along to speak of the community to which the Waitara belongs and of the communal right. In the second, William King is described as "principal Chief of the Ngati awa"

I regard him, not as chief of the whole tribe, but as chief of the Waitara. In proposition four, it is given as my opinion that the Governor was not justified in taking possession "without the Judgment of a Court of Law." What I maintain is, that the Governor was was not justified in taking possession without the decision of some competent and independent tribunal.

PAR. 9.

The assertions here made cannot be admitted. The quarrel is in its origin and nature a land quarrel. To the Maories, it is not even now a question of Sovereignty in Mr Richmond's sense. I believe there are very few (if any) amongst them, who think it possible

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or desirable to overthrow the Queen's Sovereignty and to establish one of their own. To them it is an intensely practical matter. The people of the Waitara resisted because they saw the soldiers take possession of the land. That which draws others into the quarrel is the belief that if the present proceeding of the Government shall succeed, the like will be attempted elsewhere, and they will have no security for their lands or their lives. There can be no clear understanding of the present state of affairs unless we distinguish between two things which are often confounded in official papers, the British Government and the Colonial Government. Even yet the great mass of the Native population is disposed to trust to the justice of the British Government, but I fear there are few who are disposed to trust to the justice of the present Colonial Government.

PAR. 21, 22, 23, 24.

It is here asserted that "Mr Spain's Award was a solemn judicial determination," and also that "Governor Fitzroy had no authority to reverse Mr Spain's determination."

Mr Spain's powers were such as he received under his Commission from Her Majesty and under the "Land Claims Ordinances" of the Colony. It is plain that the Commission by itself could not give him power conclusively to bind persons and lands; the Legislature only could give such power. Now the powers which the Legislature really did give, were only such powers as were requisite for a proper investigation. The

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result of the inquiry was to be reported to the Governor. Mr Spain made no such claim for himself as is now made for him. In his Despatch to Governor Fitzroy, 12th June, 1844, he says "I delivered my judgment in the presence of a considerable number of Natives, as well as Europeans; but wherein I have most carefully explained that the same is subject to confirmation by your Excellency, and cannot be carried into effect without your approval." (E. No. 2. p. 8.) Accordingly Governor Fitzroy, acting on the advice of the officer who was then responsible for Native Affairs, refused to confirm it. Respecting Governor Fitzroy's disallowance of Mr Spain's award, it may be well to notice that the present Governor has recorded his opinion in the clearest terms (Desp. Nov. 19, 1855):--

"Mr Commissioner Spain was sent to enquire into these claims, and with certain exceptions declared in favour of the New Zealand Company's purchase. His decision was, however, overruled by Governor Fitzroy, who required all lands to be returned to the Natives, except those in which it could be proved that the whole of the owners had been, or were, willing to sell them.

This just decision, which also proved to be a very politic one, prevented the New Zealand Company from fulfilling its engagements with the Settlers, and caused great dissatisfaction and in some cases distress." (Parl. Pap. July, 1860, p. 177.)

Mr Richmond remarks that my citation in italics (T. Q. p. 14) is not the whole of the sentence: which is quite correct. But it is the whole of that which

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concerns the people of the Waitara and the present question. The only claimants with whom Governor Fitzroy had to do, were the persons concerned in the sale of 1840. The people of the Waitara had nothing to do with that sale. (T. Q. p. 16.)

It is also said that "Governor Fitzroy never contemplated and never admitted the assertion of the tribal claim." It is true that nothing is said here about the tribal claim. The reason is, that the question which Governor Fitzroy had to settle, was not a question between individuals and the community, but between residents and absentees.

PAR 24.

Of this so-called Address of Governor Fitzroy I have spoken above (p. 8). The four passages here thrown together, as if they were all parts of that Address, are taken from three distinct documents: the first and second from the Address; the third from the Notice to the Absentees; the fourth from what I have called the Leading Article in the Maori Gazette of 2nd September, 1844.

The drift of the third passage is obscured by Mr Richmond's departure from the translation (itself defective) put forth by the Government in the Appendix to the Memorandum, page 24. The words "men of Taranaki," meaning the absentees, have become "men at Taranaki."

Before leaving this subject of Governor Fitzroy's alleged plans and words, I will state again briefly the fallacy which pervades Mr Richmond's reasoning on this subject.

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Governor Fitzroy bad before his mind two classes of people: 1st, those who had been parties to the sale to the New Zealand Company's agent in 1840; and 2ndly, those who had not been parties to that sale. To this latter class belong the people of the Waitara.

As to the former class, he insisted on certain terms. Their act had led the Pakeha to form a settlement. The Governor therefore was not content to abandon that settlement. The Pakeha must retain all that really belonged to the sellers. The absentees should do what they pleased, either keep or sell.

As to the latter class, the Governor recognized their claims in all their integrity. Mr Bell has told us (above p. 12) how the Natives understood that.

The fallacy of Mr Richmond's argument is this, that he treats the terms insisted on in reference to the first class, as being the measure and limit of the rights recognized as belonging to the second class.

PAR. 32.

What is called by Mr Richmond the first Counterproposition, and which is here taken to have been established, runs counter, not to what I have really maintained, but to what I am assumed to have maintained. My proposition as to the rule of Native Tenure is, that the individual holder is a member of a Community, and that the consent of the Community is necessary to the alienation of the land; and that in every purchase it is one of the matters of fact to be ascertained, what the Community is in that particular case. This proposition,

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so far from being disproved, is in fact admitted in express terms in Mr Richmond's last paragraph; where Mr McLean is cited as saying "The whole of the purchases previously made at Taranaki had been effected on the same principle as the present one from Te Teira, namely, that of acquiring the land from the different clans and sub-divisions of clans which came in from time to time to offer it." Mr McLean admits the rule; but there is nothing to shew that in this particular case that rule was carried out. There is nothing to shew that the right of the Community was ever investigated at all. Nor is there any way of reconciling the rule so admitted by Mr McLean with the direct and express denial, on the part of the Government, of everything but the individual right, throughout the proceedings at the Waitara.

Here I leave the question of the exception alleged to exist at Taranaki and the novel assertions that have been made on the subject since the proceedings at the Waitara. Those assertions have been directly denied by a number of members of the Ngati awa. In reference to Mr McLean's statements before the House of Representatives, (Q. 58, 59,) they say "We, of this Ngati awa, now hear for the first time of those modes of proceeding;"--"we have never heard of this custom all these years. We now hear of it for the first time in this answer." (New Zealand Spectator, Jan. 2, 1861.) See above, p. 5.

I now notice the stages by which men have advanced to the new theory.

In 1853, Mr Charles Brown, one of the oldest

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settlers in the Province of Taranaki, was elected Superintendent, the first under the Constitution Act. Whilst, a candidate for the office, he put forward his views on the Land question, in the following words:--"I look forward with hope that the time is not far distant, when the Government will buy no land and have none to sell, and that its office will then be confined to extinguishing the collective titles of tribes, and giving individual titles, available for sale." (Taranaki Herald, 18 May, 1853.)

In accordance with this view, Mr Superintendent Brown addressed to the Colonial Secretary the following letter, dated 6th March, 1854:--

"Sir,--A recent purchase having been effected by Mr Commissioner McLean of a tract of land in this Province, I beg to draw the attention of his Excellency the Officer administering the Government, to the peculiar features of this purchase, as bearing in the most important manner on the relations of the two races.

Mr McLean did me the honour to request my opinion on the offer of the land in question, at what he considered a high price, and in which it was proposed to exclude all but a few pah reserves, securing to the Natives the pre-emptive right of purchase of 2000 acres at 10s. per acre, each Native to purchase separately and possess a separate Crown Title for his property.

As an opportunity of introducing a principle so beneficial to the Native race, breaking up the common rights which cripple their individual energies, and giving them separate rights with Crown Titles, might not occur for a long time, I expressed the opinion which I hope will meet with the approval of his Excellency, that the introduction of such a principle was worth attaining at any cost, whether as regarded the Province individually, or its benefit, as an illustration to the whole Native race. I have no hesitation in anticipating that the adoption of the principle by any Native tribe, will convert the members of it into settlers and citizens fully as valuable as the European population." (Southern Cross, Nov. 2, 1860.)

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In another letter to the Colonial Secretary, dated 26th September, 1860, Mr Brown stated that the plan proposed in 1854 had been carried out, and that "the owners of these individual holdings are the most loyal, peaceable, and industrious Natives in the Province, as well as the best neighbours the settlers in the district could wish for." It will be seen that Mr Brown had no notion of any difference, as to the communal right, between Taranaki and other parts of the island.

Thus Mr Brown sought to effect a good object by fair and reasonable means. This was the first stage.

The second stage was when the Provincial Council at Taranaki presented their Memorial to both Houses of Assembly in 1858, urging "that the Government should compel an equitable division of such common land among the respective claimants, on the petition of a certain proportion of them." The third stage was when the Government, instead of seeking to remove by proper means the difficulty presented by the communal right, assumed it to have been removed, and denied or ignored every right except that of the individual holder.

PAR. 38.

As to the assertions in the former part of this Paragraph, I leave them to be judged of according to the evidence. As to the last assertion, the explanation is given in the text, p. 4, Par. 4.

PAR 40 TO 67.

In conformity with the principles stated in the outset, I refrain from entering minutely into these

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paragraphs relating to the "points in dispute" between the Government and the Native claimants. They contain many statements which I believe to be incorrect, to be supported by very infirm evidence, and to be capable of being impugned by better evidence, but I avoid raising minor and immaterial issues which, after all, we are not in a position to decide. Our complaint and grievance is this: that these points cannot be ascertained until the Government shall do in the end, what it ought to have done in the beginning, that is to say, institute a proper inquiry into the facts of the case.

PAR. 70, 71.

Every one knows with how much caution it is necessary to regard statements made after the fact by persons concerned in justifying what has been done. The statements here cited from Mr McLean are no exception to the general rule. I do not wish to examine them narrowly. I only ask that the strong assertions here made be compared with the evidence set forth in my text. Beyond this I confine myself to three particular points: 1st, Mr McLean here justifies the proceedings of Mr Parris in the most unqualified language, in the face of the fact that Mr Parris had not obeyed the express instructions of Mr McLean himself, which required him to visit the absentee claimants personally: 2nd, the numerous and frivolous claims made by persons who seek to share in the purchase money--which claims are themselves the product and effect of the secret system of land

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purchasing--are urged as reasons against the employment of that open and legitimate mode of inquiry, which would prevent or destroy them: 3rd, the grave doubts affecting the transaction at Queen Charlotte's Sound are passed over without notice.

PAR. 73 TO 83.

Here on the subject of the "Investigation," the same course is taken by Mr Richmond as before, with reference to the "Points in dispute." Scraps and fragments of doubtful assertions and unsifted evidence are produced by Mr Richmond, and we are asked to accept them as a substitute for that proper inquiry which was demanded by every consideration of justice and expediency. Unproved allegations and uncertain inferences cannot be allowed to take its place. The defect of inquiry can only be supplied by a proper inquiry hereafter. The web, which Mr Richmond has woven, is too weak to bear the weight of a civil war.

One passage only I think it necessary to notice: It is as follows (Par. 82); "Where unrepresented claimants are known, or believed, to exist, the Government makes inquiry on the spot; as was done in the present case at Queen Charlotte's Sound, and at Wellington. But where (as in the case of the Waikanae Natives) there is no reason to believe in the existence of valid claims, no local investigation is instituted. The Waikanae claimants (for whom the Rev. Riwai te Ahu acts as Secretary) ought to have come forward. They admit that they were aware of the negotiation at the time when the first instalment was paid in November, 1859."

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On the contrary, there was very good reason to believe in the existence of valid claims at Waikanae. It was notorious that people closely connected with the Waitara were still at Waikanae. At a distance of 200 miles, they received no notice at all from the Commissioner of his proceedings. They hear of them for the first time, when the inquiry was concluded and the first instalment paid. This mode of dealing with absent owners is now justified; a Native Minister regards it as sufficient. If this be sufficient, what can be insufficient? Do we shew our superiority and our civilization by this contemptuous disregard of common justice?

PAR. 98.

Here is the main proposition on which Mr Richmond relies: "In law, as well as in fact, their territorial rights and obligations are not subject to the interpretation of our Courts. These rights stand upon Treaty, of which the Crown itself is, rightfully, the sole interpreter." The practical consequence is drawn in Par. 121: "If the Governor had jurisdiction, he was justified in asserting it in the only practicable mode, viz., by force; in other words the Governor being of right sole judge of questions respecting Native Territorial rights, was justified in enforcing his jurisdiction in the only practicable mode, viz., by military occupation."

I have argued that the people of the Waitara, being subjects of the Crown, have not been dealt with as subjects of the Crown. Mr Richmond answers by saying, they are not subjects of the Crown; they have had all they are entitled to.

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The fallacy of Mr Richmond's argument is obvious. A Treaty in the ordinary sense is a compact between two independent nations, independent before the Treaty was made, and independent after it was made. Such a Treaty is not within the jurisdiction of the Courts of either nation. For an independent nation cannot be bound by the decision of the Courts of another nation. Disputes therefore between independent nations, respecting the meaning of a Treaty, must be decided by force or by arbitration. Of late even Sovereign powers have inclined to the latter mode. But the Treaty of Waitangi is of a different kind. The parties thereto were independent before, but not after. It is an express article of the Treaty that one party shall thereby become subject to the other; that the Maories shall become subject to the Queen, and shall receive the protection due to subjects. "Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection, and imparts to them all the rights and privileges of British Subjects."

It may not be easy to find an exact counterpart to the Treaty of Waitangi: but there is a considerable analogy between it and the Charters and other instruments, by which Princes at various times have granted rights and franchises to their people. Whether the rights of the subject have been, as in Europe for the most part, doled out by Charters wrung from unwilling hands, or given freely and at once, as in this case, makes no difference as to the nature and effect of the compact: the only difference is one of degree, and not

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of kind. Now in such cases it has not been left to the Prince to put his own construction upon the Charter; but the franchises of the people have been expounded and maintained by tribunals independent of the Prince.

It is not meant, that the whole complex body of English Law was at once to be applied to the Natives; but it is meant, that the plain and fundamental principles of English Law became applicable at once; that the Natives became at once entitled to the essential rights of British subjects. Amongst those rights surely are the following:--that life shall not be taken without a fair trial; that land shall not be taken without a fair trial. "The rights and privileges of British subjects" must mean at any rate the opposite to despotism. The proceedings of the Government at the Waitara were pure despotism.

Mr Richmond has entirely overlooked the consequences of his theory; namely, that if the Treaty of Waitangi be (as his argument assumes it to be) a Treaty in the ordinary sense, then the right of interpreting and enforcing the Treaty must belong not to one party, but to both equally; that the Natives are at liberty to resort to force in support of their view, as much as the Governor in support of his; and that they cannot be charged with rebellion, if they do so.

However little the theoretical value of Mr Richmond's doctrine may be, it is a significant and remarkable fact that such a doctrine is put forth. It is remarkable as bearing on the position, which I have maintained, that the Natives at the Waitara, being

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British subjects, have not been treated as British subjects. Had it been possible to shew that they have been treated as British subjects, Mr Richmond would hardly have had recourse to a doctrine which denies them to be British subjects at all, which repudiates the assurances given by word and deed in a vast variety of ways during twenty years, and which puts the Natives in the same position in which they would have stood, had the Treaty never been made. It should be noticed also, what that is which is now clothed with the name and dignity of "the Crown." "The Crown itself (says Mr Richmond) is the sole interpreter of the Treaty." (Par. 98.) It might be inferred then to be the duty of the Governor to provide for the Crown the means of interpreting, to ascertain all the facts, to submit them to the Home Government, and to act upon their decision. But Mr Richmond requires nothing of the kind. In Par. 121 he applies the general principle to the particular case of the Waitara, and attempts thereby to justify the proceedings of the Government in this particular question. This enables us to understand what Mr Richmond means, when he says that the Crown is the sole interpreter of the Treaty. The Crown then, in Mr Richmond's sense, does not mean the Queen or the Government of England. They had never authorized, they did not understand, they had no means of understanding, what the Colonial Government was doing at the Waitara. That which Mr Richmond calls by the name of "the Crown" is in fact the Governor of the Colony, acting in a matter vitally

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concerning the interests of the Natives and the honour of the Crown, without any special authority or instruction from the Crown, with the concurrence and on the advice of persons who represent neither the Natives nor the Crown. Let us reduce the general proposition a little further. The Governor judging in this particular case is simply and in fact Mr Parris. The largeness of the general proposition narrows itself down practically to these dimensions. The majesty of the Royal word and the largeness of the national undertaking issue in the decision of an Assistant Land Purchase Commissioner.

In May, 1857, the present Ministers recorded their opinion on the policy to be pursued in Native matters: they said "As to the ultimate end to which the British Government in these Islands is bound to shape its Native policy, there can be no difference of opinion. Successive Governors have promised, in the name of the British Crown, that the Colonists and the Maories should form but one people, under one equal law; and no effort must be spared to redeem this pledge." (T. Q. p. l00.) In December, 1860, a theory is boldly put forward by one of those Ministers which, if England were capable of adopting it, would render the fulfilment of those promises absolutely and for ever impossible: a theory according to which the Native population must submit to be aliens on their own soil; to bear the pressure of our dominion, but not to receive the protection of the Law or the privileges of English subjects. Thus, whilst professing to aim at raising and preserving this race, and bringing them

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into a peaceful union with ourselves, we uphold and prescribe a course of action which must provoke them to the most determined resistance to our authority, and can only end in the failure of our undertaking, in discredit to ourselves, and in ruin to them.

PAR. 100.

I agree with Mr Richmond that "at the present moment the desideratum is to bring the Maories within the pale of the law." My complaint is, that the Colonial Government have so proceeded as to render the object more difficult of attainment than it was before. (See above, pp. 26-27.)

PAR 103.

The Land Claims Courts were not cited by me "as instances of the satisfactory working of a jurisdiction over Native Territorial Rights." They have no such jurisdiction. They were referred to as shewing that the Colonial Legislature had again and again created Courts of Inquiry possessing powers and means for ascertaining facts, which Mr Parris did not possess.

PAR. 107, TO 110.

In these paragraphs Mr Richmond dwells on the difficulty of bringing dishonest or contumacious debtors of the Native race within the reach of our Civil Courts. The existence of such a class of persons furnishes no evidence against the disposition of the large majority to obey law. Few nations would be content to have defendants in actions of debt set up as their "representative men." Amongst the Maories, as elsewhere, the

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general character of the people may be more fairly estimated from the large majority who fulfil their contracts without legal compulsion than from the minority, against whom the process of the Courts is resorted to.

PAR. 138.

I have asserted that the persons invited to the Kohimarama Conference were, with few exceptions, such as were known to be friendly to the Government. When Mr Dillon Bell urged in the House of Representatives (August 17, 1860), the necessity of carefully considering the nature and constitution of the Conference proposed for 1861, he said that the Conference just held could not be regarded as of a representative character, for only those chiefs had been invited who were known to be friendly. No member questioned that statement. Mr Richmond said it would be the object of the Government to give to the next Conference as much of a representative character as possible.

Though I cite Mr Bell as asserting the same thing, my knowledge of the fact is derived from, independent sources.

PAR. 141.

The purpose of the last 50 pages of the pamphlet was not solely, as Mr Richmond suggests, "to enforce the necessity of a just and honest policy." The chief purpose was to shew, what have been the fruits of the existing mode of managing Native Affairs. Nominally, Native Affairs are committed to a Governor responsible to the Crown. But, in fact, the Governor possesses no substantial power, and cannot obtain such power

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except upon such terms as may be imposed by persons, who represent neither the Crown nor the Natives. He may propose plans, but he can do little beyond that. There is under existing circumstances no security for the establishment of any complete and consistent plan for solving the Native difficulty, much less for steadily carrying out such apian for a reasonable length of time.

The last Session has shewn us, that there are among the Colonists men capable of taking a just and comprehensive view of the relations of the two races. But thought and labour were stimulated by the war. The same amount of interest and exertion cannot be expected under ordinary circumstances.

My purpose was to shew that the existing system of management has issued in alternate fits of neglect and of intimidation, of non-government and of misgovernment; and thereby to suggest that the same mode of management, if continued, will only lead to a recurrence of the same deplorable results.

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