Notes on Sir William Martin's Pamphlet Entitled the Taranaki Question
"It may be the whole tribe"…………
It is to be regretted that the words "community," "society," tribe," "subtribe," "hapu," "family," "clan," "people," are so interchanged as they are throughout the pamphlet. It seldom clearly appears whether Sir W. Martin intends a particular argument to apply to the whole tribe, or to a subdivision of it. In any case affecting Native Tenure this would have to be determined; but in the case of Taranaki it is indispensible to be exact, because there the question entirely depends upon whether the right of property and the right of alienation are in the whole tribe (iwi) or in its numerous subdivisions (hapu).
This interchange of terms, indeed, shows the difficulty in treating with Natives for the purchase of land, and the reason why it is impossible to lay down any definite rule as to Native tenure. It is not disputed that the Native title is tribal rather than individual; this is "the necessary consequence of the existence of clans or tribes." But the question is always in every case, how far is the title "tribal"? Is it in the whole tribe, or in a subdivision or family? This is not to be determined by any arbitrary rule: it depends wholly on the state of the Natives themselves in particular localities.
In some localities the "community," as regards the title to land, may be the whole tribe: in others, it may be a group of hapus; in others, it may be a single hapu: in others, it may be the subdivision of a hapu; more rarely, the title is admitted to lay in individual proprietors.
Detailed illustrations of the different manner in which land is held by different tribes would be out of place in this note; for the present purpose it is sufficient to refer to the Ngatiawa.
From a period long anterior to the establishment of British sovereignty, it was a well known rule that the various sections of the Ngatiawa claimed their land separately, and that they admitted no overriding general tribal right. When they migrated from their ancient inheritance or were driven out by the Waikato conquests, they were dispersed into several new localities, and were well known in each locality to act independently of each other and independently of any general right of the whole tribe. This is quite certain.
At a later period (after the establishment of British sovereignty) when the captives taken in the Waikato invasions were manumitted, and numbers of those who had voluntarily migrated to other places began to return to Taranaki, the proprietary right, and the right of alienation, were undoubtedly acknowledged to exist in separate small sections of the tribe without any reference to general tribal right. This was a necessary consequence of their returning as they did in parties of two or three at a time. The Tribe never returned, and has not returned to this day. Those families which remained in the new places where they had settled, were never admitted to exercise authority over those who returned, in the disposal by the latter of their own land. For the last eighteen years it has been acknowledged amongst themselves that even a family of three or four people were free to dispose of or to retain their property.
These well-known rules of tenure in the Ngatiawa tribe at Taranaki, together with the declarations of Governor Fitzroy in 1844 [see note pp. 13, 14], have been the foundation of every cession of territory there, without exception.