CHAPTER II
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CHAPTER II.
APPOINTMENT OF COMMISSIONERS---ORDINANCE OF LEGISLATIVE COUNCIL OF NEW ZEALAND---NATURE OF CLAIMS---NUMBER OF CLAIMS---CLAIMS IN NORTH ISLAND, OR NEW ULSTER---CLAIMS IN THE MIDDLE ISLAND, OR NEW MUNSTER---CLAIMS IN STEWART'S ISLAND, OR NEW LEINSTER---AREA OF THE THREE ISLANDS---CONSIDERATION GIVEN FOR LAND---MODE OF INVESTIGATION OF CLAIMS---TENURE OF LAND AMONG THE NATIVES---AMOUNT AND DATE OF CONSIDERATION GIVEN --- EXAMPLE OF CLAIMS.
Immediately after passing of the bill, the Governor, Sir George Gipps, nominated three Commissioners to act, viz. Francis Fisher, Esq., William Lee Godfrey, Esq., and Matthew Richmond, Esq., who proceeded to New Zealand, and commenced hearing claims at the Bay of Islands.
The separation of New Zealand from the colony of New South Wales in April, 1841, put an end to the powers of the Commissioners under the bill of New South Wales, and it was necessary, that the Legislative Council of New Zealand should pass a bill, to enable the Commissioners to resume their functions; and accordingly, on the 9th of June, 1841, an ordinance was passed by the Legislative Council assembled at Auckland, to repeal the previous act of the government of New South Wales, and to authorize the Governor of New Zealand to appoint Commissioners.
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ORDINANCE OF LEGISLATIVE COUNCIL.
This ordinance is precisely the same as the act of New South Wales, with two exceptions---the first, that no mention whatever is made of a Secretary to the Commissioners in any of the clauses; the second and most important difference is in the words of the first clause, and to which allusion will be again made in subsequent pages.
In the act of New South Wales the first clause is concise, limited, and specific, viz: "Be it therefore enacted that all titles to New Zealand which are not, or may not hereafter be allowed by her Majesty, are and shall be absolutely null and void."
The ordinance of New Zealand implies some other intent and view, for the words of the clause are, "Be it therefore declared, enacted and ordained, that all unappropriated lands within said colony of New Zealand, subject however to the rightful and necessary occupation and use thereof by the aboriginal inhabitants of the said colony, are and remain crown or domain lands of her Majesty, her heirs and successors, and that the sole and absolute right of pre-emption from the said aboriginal inhabitants, rests in, and can only be exercised by her said Majesty, her heirs and successors, and that all titles to land, &c. &c. are null and void."
Under this ordinance two Commissioners only were re-appointed---Colonel Godfrey and Capt. Richmond---Mr. Fisher having been appointed Attorney General for the Colony, and intelligence having likewise been received from England, that Mr. Spain had been appointed Chief Commissioner of Land claims.
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NATURE AND NUMBER OF CLAIMS.
It has been thought expedient, to give this preliminary account of the circumstances attending the passing of the bill in New South Wales, as well as an abstract of it, in order to point out, precisely, the position in which the land claims are now placed.
The nature and extent of these claims next deserve attention, to shew on what grounds of value given, or otherwise, they can, with justice to the Natives, or as regards the future interests of British subjects, be recommended to the Governor for confirmation, by grants of the land, so claimed, from her Majesty.
These claims, when registered at the office of the Colonial Secretary were numbered---the extent of land specified---from whom purchased---consideration given---and nature of conveyance; but a great number are very vaguely described, and deficient in one or more particulars required, more especially those of later date.
Up to the 1st August, 1841, there were 595 claims which had been referred, by order of the Governor, to the Commissioners for hearing; and on the 1st October, 1841, there were 200 more, in the office of the Colonial Secretary that had not been referred.
As far as it was practicable, the 595 cases have been taken from the Government Gazette, and put into an intelligible form,---distinguishing the island, the coast, and the district of, or principal place near to, each claim. (See chap. iv. p. 121---Table, Land Claims.)
In many instances of the later purchases, the boundaries have been defined by degrees of latitude
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CLAIMS IN NORTH ISLAND, NEW ULSTER.
and longitude, or by miles, therefore the area has been computed in acres. Such claims as are undefined in every way, have been omitted altogether, as well as those under 1000 acres. The number of acres, against the name of the claimant, comprise the whole of his claims, the number of which is specified by the figure following the name, and may have been purchased at different periods.
In the North Island, New Ulster, it will be found that there are no less than twenty-five different places of importance, in which there are claims, and it is on the North Island that there are the greater number of resident settlers. On the western coast, at Hokianga, there are above forty persons, many of whom have been resident some time, having above eighty claims for an area of land exceeding one hundred and thirty thousand acres. Then follows Kaipara, Manakao, Waikato, River Waipa, Kawia and Taranaki on the same coast. On the eastern side of the North Island, there are Doubtless Bay, Kaitaia, Mongonui, Wangaroa, the Bay of Islands, where the resident settlers have nearly one hundred and fifty claims for all the land in the neighbourhood; then lower on the same coast are Tutukaka, Wangari, Bream Bay, Matakana, Waitemata, Coromandel Harbour, River Thames, River Piako, Mercury Bay, Tauranga, East Cape, Poverty Bay and Hawkes Bay. On the northern shore of Cook's Straits there are, exclusive of the New Zealand Company's, claims for above one million of acres.
Exclusive of these claims to land on the Northern
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CLAIMS IN MIDDLE ISLAND, NEW MUNSTER.
Island, there are numerous islands claimed as purchased from the Natives. The Great Barrier, all the islands in the gulf of Houraki, excepting Waiheki; and in Cook's Straits, the isles of Manna, Kapiti or Entry Island, and the island of Kanarra at the mouth of the Pelorus River. The total number of acres, in the claims for the North Island, as already published, may be fairly, as far as they can be defined, estimated, in round numbers, at seven millions of acres, among about two hundred persons, having three hundred and fifty claims.
The claims to land in the Middle Island, New Munster, will excite more surprise and astonishment than those of the North Island, where many of the claims are of long date, and the Natives have received, at the time of purchase, what may be justly considered the full value of the land, bearing in mind the internal state of New Zealand, and the absence of all protection, to property and person, at such period.
On the Middle Island, except in Queen Charlotte's Sound, Cloudy Bay in Cook's Straits, and on the south-eastern part of the island at Akaroa and Otako, which are all whaling stations only, there are few or no settlers. The Natives, likewise, are very few in number, in comparison with the North Island. To the latter fact, may perhaps be attributed the extensive claims by so very few persons.
Beginning at the western extremity of Cook's Straits, on the southern coast, being the northern shore of the Middle Island, there are claimants for Blind Bay, Admiralty Bay, and both banks of the
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AREA OF THE THREE ISLANDS.
Pelorus River for fifty miles inland, Queen Charlotte's Sound, and Oyster, Tararra, and Wynangra Bays within Cloudy Bay.
On the east coast of the Middle Island, there are the shores called Lookers-on, Akaroa, Moracka, Otako, Port Levy, and all the coast, including Bluff Harbour, of Foveaux's Straits. Then on the western coast, there is Dusky Bay, Preservation Bay, Port Adventure, Mistaken Bay, and Cape Farewell, all of which have claimants. There are likewise three whole islands on the eastern coast of the Middle Island alleged to have been purchased from the Natives: Ahamataroa, Green Island, and Spencer Island. The total number of acres, claiming grants from the Crown, on account of purchases from the Natives, on the Middle Island, cannot be computed at less than twenty-five millions of acres, and these claims are made by less than thirty individuals.
The whole of the Southern Island, generally known as Stewart's Island, but now designated New Leinster, is wholly claimed, as well as the small adjacent islands of Erecochere, and the Land of the Living.
Those claims, yet unpublished by the Commissioners, are not calculated, but the above details will be sufficient to shew the great importance of the question of land claims in New Zealand, more particularly, when the actual area of the whole three islands is compared with them.
The area of the three islands of New Zealand has been variously estimated, and, in recent publications, generally conceived to exceed 90,000 square
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CONSIDERATION GIVEN FOR LAND.
miles. However, the North Island may be computed to cover a superficial area of 34,000 geographical or 89,383 English square miles, containing above 25 millions of acres. The Middle and Southern Islands may be estimated pretty accurately to contain 40,000 geographical or 46,731 English square miles, and nearly 30 millions of acres. Therefore, the total area of the Colony of New Zealand may be said to contain, in round numbers, 86,000 English square miles, or fifty-five millions of acres.
In comparison with the actual area of the three islands, how large is the proportion of land alleged to have been purchased from the Natives! Already thirty-two millions of acres are claimed, and if the claims, unpublished, are in the same ratio, there will be more than four-fifths of the whole of New Zealand claimed as private property, leaving only one-fifth for the numerous aboriginal tribes, spread chiefly over the North Island, and for Her Majesty to exercise her right of sovereignty and pre-emption, for the purposes of her government and the supply of emigration under its sanction. It is well known, also, that the largest part and most fertile district of the North Island has not yet been sold by the Natives, nor is it even claimed by Europeans, viz. the rich valleys, in the interior, of the Waikato and Waipo Rivers, of the lakes of Taupo and Roto Rua, and the whole of the Eastern coast.
It is impossible to form an accurate estimate of the real consideration given, or of the actual total amount paid, by parties making claims to these vast
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MODE OF INVESTIGATION OF CLAIMS.
tracts of land, for there are nearly two hundred cases in which no consideration is stated. Investigation of the details of these claims will point out the very great difference of consideration and value, given by the early settlers, and more recent purchasers, particularly between those of the North Island, of the Bay of Islands, and Hokianga, and the immense tracts of land alleged to have been purchased in the Middle Island, for very small sums.
It will be now necessary to illustrate the mode prescribed, by the ordinance of the Legislative Council of New Zealand, to the Commissioners for adjusting such claims. The instruction contained in the commencement of the sixth clause, protects equally the Aborigines, and the purchaser, and prevents the former from being the unwary dupe of the latter; for the Commissioners "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 laws would require in other cases or not."
That the Natives should properly understand any contract they may have entered into, is but common justice to them. Acute as they are, and sensibly alive to their individual and collective interests, yet it is well known that, in many instances, they have been induced to sign agreements to part with lands, for which they had not immediate use or occupation, conceiving that they were only disposing of the crop
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TENURE OF LAND AMONG THE NATIVES.
to be raised on that land, or in other words, at a rental. In many other cases, the conveyances have been brought already prepared in English, with blanks for boundaries, which have been filled up without such boundaries ever being seen, much more measured, but stated as extending so many miles on each of the cardinal points of the compass, and the document then interpreted by Europeans to the Natives, according to what the latter may have intimated their meaning to be of the sale.
Next to the proper understanding and acknowledgment, by the Natives, of any document it may have been alleged they have signed, is to ascertain, whether the Natives, who have been parties to such sale, are the real owners of the land claimed. The laws and customs of the aboriginal chiefs and natives, regarding land, are so well understood and acknowledged amongst themselves, that the various respective boundaries of every tribe and chief are well known, and can easily be ascertained. They possess their land either hereditarily, or by right of conquest, and such dominions are not the property of one individual or chief, but the property of the tribe in common, according to their grade, as minor chiefs or rangatiras, and their relatives, the younger branches of old families, and frequently females who claim in right of their parents. The chief is the organ of the tribe; but he has neither exclusive property nor power, except similar to clanship or the feudal system, which, in truth, approximates nearer to the customs of the Natives in New Zealand, than
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LETTER TO COLONIAL SECRETARY.
any other form of government. They never actually divide their property; but move, according as their inclination, or their idea of more productive cultivation may prompt, from one part of the property of the tribe to another. Then each individual occupies and cultivates a certain quantity of land, which is regarded as his exclusive property for the time: occupation being held sacred.
It is very clear, therefore, that in any extensive purchase of land from the Natives, many must be interested, and consequently their assent and signatures required to any document stamped with validity. The great eagerness of Europeans in 1839 to purchase land, has no doubt led to many transactions that will prove quite invalid, for the Native will sell land, if he is only an individual of a large tribe, sometimes being fully aware he has no right to it whatever, and sometimes conceiving he is only selling and conveying his own share of the joint property of the whole tribe.
Extract from a Letter to Willoughby Shortland, Esq. Colonial Secretary, from Rev. W. Williams, 8th May, 1840.
"I take this occasion of sending, for the information of his Excellency the Governor, some account of a most nefarious transaction which took place in January last, being an attempt on the part of a Captain Rhodes, of the barque Eleanor, from Sydney, to dupe the Natives out of a tract of land, extending from Port Nicholson to the northern side of the Ahuriri, in Hawke's Bay, and again from the
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LETTER TO COLONIAL SECRETARY.
northern bank of the river Wairoa, to the north of Table Cape. For this land, embracing a coast line of about one hundred and sixty miles, and intended no doubt to extend as far into the interior as may be convenient, property to the amount of about one hundred and sixty pounds has been paid to the Natives. A list of this property I have in my possession. From this circumstance alone I doubt not but that his Excellency will take measures to set aside the whole transaction: but in addition to this fact, I am prepared to establish:
"First---That a large portion of the land was bought from persons who had no interest in it.
"Secondly---That those persons, signing the deeds, being proprietors of the land, did not understand their nature.
"Thirdly---That some of those who signed the deeds, expressed their disapproval after their signature was given, by refusing to receive the payment.
"Fourthly ---That the most numerous body of the proprietors were not consulted in the matter, the purchase having been made on board ship, and expressed their most decided disapprobation."
In many instances in the present claims, the same district has been alleged to have been purchased by more than one, sometimes three or four persons, and if enquiry is made of the chief and tribe of natives, who are actually the lawful owners and possessors, as to the real purchaser, they will declare they have never yet sold it at all.
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AMOUNT AND DATE OF CONSIDERATION GIVEN.
On the Northern Island there can be no difficulty whatever, in ascertaining the real proprietors of the various districts; for the incessant and sanguinary wars, until within four years since, have diminished the tribes, and rendered their respective limits and boundaries more definite, and as there will be no more such struggles, there will be no alteration from the present occupation, and consequently no dispute as to the property of the chiefs and tribes.
The native population, in the North Island, is nearly one hundred and fifty thousand, and every part of it has its just owners and actual possessors. Not so in the Middle Island, where, with the exception of the southern shores of Cook's Straits, on which the Natives of Kawia of the North Island have some conquered territory and Pas, the number of Natives is small in proportion to the land.
This may, in some measure, account for the vast tracts of land, sold by the Natives on the Middle Island, for such trifling sums. The quantity of land required by so few Natives, for occupation or cultivation, could be nothing on an island 400 miles in length, and averaging 100 miles in breadth: therefore, they were quite willing to receive, whatever Europeans would give, for that which was quite unavailable and useless to themselves.
When it is ascertained that the contract has been made with the chief and native tribes who are the rightful owners of the land, alleged to have been purchased, and that the Natives fully understand the agreement entered into by them, then the sixth
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AMOUNT AND DATE OF CONSIDERATION GIVEN.
clause enacts, that the Commissioners "shall enquire into, and set forth, the valuable consideration, with the sterling value thereof, paid for the lands claimed, as well as the time and manner of such payment to the Natives, by the original purchaser from the Aborigines, and not to take cognizance of any valuable consideration given for the land by any subsequent purchaser."
This is certainly a most judicious enactment, for it circumscribes the enquiry and adjudication, to what will, hereafter, be the title deeds of all the landed property in New Zealand.
There are many claims, however, made on the plea of being derived by purchase from parties who had previously acquired the land from the Natives; but any enquiry, into such transactions, would be fruitless as to establishing the validity of any original contract by a third party with the Natives. The decision---or rather the dismissal of all such cases without hearing---by the Commissioners, will no doubt render nugatory very many of these subsequent sales, but they must be adjusted between the parties themselves. The Government cannot interfere in such cases. Indeed, generally, these bargains have been entered into, either at a price stipulating guarantee of good title or refunding the purchase money, or comparatively at a very low sum, to incur all risk of the claim being disallowed by the Commissioners.
The consideration, given for the land to the Natives, has generally been in goods, more especially in the earlier purchases. Blankets, tobacco, pipes,
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EXAMPLE OF CLAIMS.
muskets, gunpowder, lead for bullets, cartouch boxes, tomahawks, and slops, are the principal articles. When the delivery of these articles is acknowledged by the Natives, they are to be estimated at three times their selling price, at Sydney, at the time of purchase. This process is rather vague, and liable to deception and abuse. It ought to have been accompanied by a stipulation compelling the purchaser to produce a certificate of the wholesale prices of the articles, signed by two or three merchants of repute in Sydney.
In truth, it is difficult to comprehend the reason for any such incongruous proviso in the ordinance. It would have been a more simple and intelligible method, and would have abridged, as well as rendered perfectly clear, the duty of the Commissioners, if the invoice, at the actual cost of the articles, duly certified, was produced, or the claimant taking oath he had given sterling value to the amount. Then, if the scale of the various prices per acre, at the present dates of purchase, in the schedule D. had been reduced two-thirds, the same result would have been given, as by the complicated process of trebling the purchase money, and then valuing the land at proportionately high rates.
To illustrate further the enactments of the 6th clause (5th New South Wales) of the ordinance, and the principle on which the adjudication of the Commissioners is to be guided, two promiscuous examples---but of early and late dates---taken verbatim from the official documents, will be sufficient.
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EXAMPLE OF CLAIMS.
" Case 155.--- Gilbert Mair, of the Bay of islands, New Zealand, claimant.
"350. Three hundred and fifty acres, more or less, situated at the Bay of Islands, at the mouth of the Kowa Kowa river, below the town of Russell, and called Wahapu; bounded on the south and west by the salt water of the bay, and on the other two sides by the neighbouring Europeans. Alleged to have been purchased by the claimant in the year 1831, from the natives of the Kowa Kowa tribe.
"Consideration.---Merchandize to the amount of £70. sterling.
"Nature of Conveyance.---Not stated." Presuming the contract to have been made and allowed by the Kowa Kowa natives, it will be necessary to prove the selling price of each article of merchandize at Sydney in 1831, and that the estimate is to be trebled, which, if the statement of Mr. Mair be correct, would be £210.
According to the schedule D, the valuation per acre, for valid purchases in the year 1831, is nine-pence per acre. For Mr. Mair, being a resident, is not liable to the additional 50 per cent, on the valuation per acre, to which all claimants not personally resident in New Zealand, or not having a resident, are subject, therefore he will be entitled to the whole of his claim. Indeed had Mr. Mair purchased, for the same sum, an area equal to the maximum grant (2,560 acres), his claim would have been allowed; for the table very justly fixes, comparatively, a low rate on such early purchasers and residents.
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EXAMPLE OF CLAIMS.
The second example is of a different character. "Case 187 (a), John Jenkins Peacock, of Sydney, merchant, claimant.
"All that piece or parcel of land known by the native names of Tetaranga, and E Ko-koi, situated in Cook's Straits, bounded by Jackson's Head to the eastward, and to the westward by the Pelorus River; to the northward by Cook's Straits, extending inland thirty miles south-west. Contents not stated."
Although the contents are not stated, the area can be nearly ascertained. From Cape Jackson, or Jackson's Head, to the entrance of the Pelorus, is at least twenty miles along the shores of Cook's Straits, consequently the claim contains 600 square miles, or 384,000 acres.
"Alleged to have been purchased in October, 1839, from Abutto, chief of Tetaranga, and E Ko-koi.
"Consideration.---Cash and merchandize to the amount of £50. sterling.
"Nature of Conveyance.---Deed of feoffment to claimant, dated 15th October, 1839."
Applying the conditions of the sixth clause, the sum will be £150.; and, according to the rates of the table in schedule D., the valuation will be eight shillings per acre: but Mr. Peacock not being personally resident himself, and having no resident agent on the Pelorus River, fifty per cent, must be added, and twelve shillings per acre will be the scale of valuation, which will reduce the claim to a recommendation for a grant of 250 acres.
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EXAMPLE OF CLAIMS.
It will be evidently seen, that the award, in both these cases, would have been precisely the same, if the table of valuation had been reduced proportionately to the multiplication of the cost. In the former case of Mr. Mair, it would have been a valuation of three pence per acre on a purchase-money of £70., and on the latter of four shillings per acre on the actual sum paid of £50.
These examples will show to what extent the scale of valuation will affect the claimants of all dates, and likewise, give some idea of the very great extent of land, that must be awarded by the Commissioners, in those cases that are allowed by the natives.
