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Life of Sir George Grey: Governor, High commissioner, and Premier. An Historical Biography.

The Right of Occupancy

The Right of Occupancy.

That he cannot have urged to Bishop Selwyn and Chief-Justice Martin, in opposition to the new Constitution, the considerations that had most apparent weight with himself, is manifest from the stand they took and the lines of reasoning they followed, so different are they from his own. He makes no reference to the breach of the Treaty of Waitangi implied and virtually authorised in the Eoyal Instructions. Earl Grey frankly avowed that he "entirely dissented" from the doctrine ''that the aboriginal inhabitants of any country are the proprietors of every part of its soil of which they have been accustomed to make any use, or to which they have been accustomed to assert any title." He proposed to set up district land courts, in which no claim of the natives to lands shall be admitted unless it be proved that they had occupied or been accustomed to enjoy these, "either as places of abode or for tillage, or for the growth of crops, or for the depasturing of cattle, or otherwise for the convenience and sustentation of life, by means of labour expended thereupon." In reading these instructions, which seem so explicit, the Governor jesuitically professed to assume that, when Earl Grey referred to unoccupied waste lands, he meant unclaimed page 54lands. Yet lie is careful to explain to Earl Grey that the Maoris supported themselves, not only by cultivation, but by digging fern-root, by fishing and eel-catching, by hunting wild pigs " (for which they require extensive runs);" and that to deprive them of the "wild lands" would be to cut off some of their most important means of subsistence.

It was no accusation against Earl Grey, or the directors of the New Zealand Company, who prompted him, that they were unacquainted with the state of countries that were still at the clan stage; not for twenty or thirty years were publicists to learn that in the greatest of British dependencies, where the clan stage is stationary, there is no waste land, properly speaking. "Of uncultivated land there is abundance; but, with some trifling exceptions, the entire country is appropriated and is divided among the different village communities."* England itself, in so-called Anglo-Saxon times, was covered with a network of such communities. In 1847 New Zealand, so far as it was occupied by the Maoris, was at that stage, and, with similarly trifling exceptions, there was no portion of the land, at least in the North Island, that was not claimed by one or another of the clans.

"What was the value of the claim? In theory, all the most eminent jurists and all the great discovering powers have recognised a "right of occupancy" as inhering in the aboriginal or indigenous possessors of the soil of a conquered country, and such a right can be extinguished only by treaty. In practice, history shows that, in America, at least in later years, the native right of occupancy has been steadfastly set aside by aggressive Governors and Presidents or encroaching Legislatures. In all the records of mankind there is hardly told such a long-drawn-out tragedy as is revealed by Mrs. Helen Hunt Jackson in her work, A Century of Dishonour, where the earnest and accomplished authoress does what Burke declared that he could not do—draws an indictment against a whole people. No such charge can be page 55made against the rulers of New Zealand. The day was to come when a whole province of acknowledged Maori territory was after a protracted war, to be confiscated by right of conquest, and there had previously been numberless disputes in detail, some of them sanguinary, about the possession of this or that portion. Some of the treaties, especially in the South Island, but also in the North, have not been strictly observed. But the alleged right of occupancy has ever been held sacred. Would it have been so held had the principle laid down by Thomas Arnold, and accepted on his authority by Earl Grey, been adopted and acted upon! The historian of ancient Rorne and professor of history at Oxford maintained that such a right is "inseparably united with industry and knowledge''. Wherever these had not been applied, he contended, and Earl Grey agreed with him, that the right lapsed.

The drift of public opinion in the forties was against the contention, and perhaps it was well. Ugly questions were thus not raised, and implacable animosities were not aroused. For one reason or another the Maoris parted with their lands as speedily as the needs of the colonists demanded, and the advance of colonisation did not, as in the United States it did, outstrip the decline of the Native race. In our days the trend of settlement is all the other way, and the Maoris are about to be dispossessed on a large scale in order that their lands may be thrown open to cultivation. It is a consequence of the more strenuous temper of our generation.