An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand
(No. 1.) — The Hon. Colonel Haultain to the Hon. D. McLean
The Hon. Colonel Haultain to the Hon. D. McLean.
Sir,—Wellington, 18th July, 1871.
With reference to your letter (A.-No. 92) of the 13th February, 1871, requesting me to procure information with regard to the working of the Native Lands Acts, and to furnish an impartial report embracing facts respecting the operation of the Acts, including the surveys and other expenses page 42incidental thereto, the alienation of land by the Native owners, and the expenses to which the Natives are subjected in establishing their title, I have the honour to inform you that I have minutely discussed these matters with such of the principal chiefs as I could meet at Auckland and Napier, and have communicated by letter with others who were thought most competent to express the intelligent opinion of their people. I have also conferred with a number of official personages, and with some of those Europeans who, from their calling and experience, or from their well-known sympathy towards the Native race, are qualified and entitled to express opinions in all matters connected with them. Through the courtesy of Mr. Fenton, the Chief Judge of the Native Land Court, I have had access to all the records of that office, and have received the readiest assistance from him in prosecuting my inquiries. I have procured from him various returns necessary to show the working and effects of the Acts, and I have consulted various other official documents (including Sir William Martin's and Dr. Shortland's recent memoranda) bearing upon the subject. The principal portion of these materials are attached as an appendix to this report, and extracts from Parliamentary Papers already published are included for convenience of reference; and I now proceed to summarize the information I have collected, and to offer suggestions for the remedy of those defects that are most apparent and pressing.
As comparisons will be made between the past and present systems of acquiring their surplus lands from the Natives, it is necessary that I should briefly refer to the circumstances which led to the abandonment of the old policy, under which the Government alone could lawfully deal with the Natives for the acquisition and occupation of such lands as they wished to alienate, and to the adoption—experimentally in 1862, and practically in 1865—of those laws which made provision for individualizing and fixing the titles of Native lands, waived the Crown's right of pre-emption, and empowered the owners "to dispose of their estate or interest to any persons whomsoever."
The old land-purchase system had, up to a certain period, worked well; and, although there had been at various times and on various grounds objections raised and threats made by turbulent and dissatisfied Natives with respect to some of the sales that had taken place, yet, except in one unfortunate instance—the blame of which, if any, could not be attached to the department—no serious troubles had ensued, the differences were ultimately arranged, and the engagements were respected, and nearly six million acres of land in the North Island were purchased at an average cost of not more than 1s. an acre. But the King movement amongst the Natives and the formation of the land league imposed serious hindrances to further acquisition of land; and amongst the friendly tribes there was a desire for a change of system, an impression that higher prices would be obtained from private persons, and an expectation amongst the commoners of those tribes that the individualization of title would remedy a grievance which they had keenly felt, though they had quietly submitted to it—namely, the appropriation by the chiefs of the greater part of the proceeds of the sales of their common property. With the colonists there was an impatience to see the country more freely opened to private enterprise —with some there was a recollection of the advantages that had been gained when the Crown's right of pre-emption had been waived by Governor Fitzroy; and with others a wish to free the Natives from all special restrictions, and a benevolent desire to break down those communistic customs which obstructed civilization and prevented their social improvement. Then there was the Waitara war. And there had been exhibited, in some parts of the North Island, a settled determination to deal directly with the Natives for the lease of their lands, which was not only illegal, but prevented the purchase of lands that were required for colonization; and no Government had been able to enforce obedience to the law, and it was well that such an anomaly should be wiped out. These causes and influences prevailed, the Crown surrendered its interest in the landed estate of the North Island, and the new system was fairly started in 1865. Since that time and up to the end of last year the Judges of the Native Land Court have heard 3,489 applications for investigation of' title in the North Island, and have ordered certificates or Crown grants in 2,619 cases for an area of more than 2,400,000 acres.
What has been the effect of the operation of this new system? And have both Europeans and Natives realized the benefits that were expected to flow from it?
There have been, as in previous years, cases where the decisions of the Court have been disputed, and threats of violence and resistance to occupation have been uttered, but no serious troubles have hitherto ensued; and the dissatisfied are aware that turbulence on their part will not disturb the titles given by the Court. The general principle of a Court for the judicial investigation and determination of titles is almost universally accepted as satisfactory; but there have been serious defects in the Acts, which prevented the Natives from reaping all the advantages they expected, have opened the door to fraud and chicanery, and have caused much dissatisfaction amongst the sufferers. These defects have been largely modified by subsequent legislation, but they urgently require still further amendment.
There is scarcely a Native that I have examined who has expressed a desire to see the Court abolished or materially altered in its constitution. It is not to the giving of titles they object, but to the manner in which the Crown grants are prepared, which enables a few of those interested to defraud the others. The impartiality and ability of the Judges have been unquestioned. Out of the 2,619 titles that have been ordered by the Court, the instances in which their decisions have been seriously disputed are, so far as I have been able to ascertain, quite exceptional. It is to be expected that there will be some passing dissatisfaction in the minds of the losing parties, and an inclination to resist the law amongst those who have not been trained to its unquestioned acceptance; but up to the 30th December, 1870, there had been but thirty-five applications for rehearing, six only of which had been granted, and, of these six, in only two cases have the previous judgments been reversed.
Going over the statements of the Native chiefs (the majority of whom, I must remark, are chiefly from the northern parts of the Island), I find the following opinions on the subject of the Court: Tamati Waka Nene "likes the Native Land Court very well." Hemi Tautari says, "The Native Land Court has worked satisfactorily in the Bay of Islands up to the present time. I see no faults in the system. The only advantage of the old plan was that the Government bought all the bad land, page 43which private individuals will not do." Henry Mohi Tawhai writes, "The Native Land Court—it is good exceedingly; through this we are admitted into the chief works of the Government." Eru Nehuru "approves of the Native Land Court, because it individualizes titles, and then no one can deprive the owner of his land." Wiremu Poinare says, "The Maoris who understand English customs approve of the Native Land Court." Te Wheoro wishes for a system of arbitration, instead of the Court; but he was then smarting at the loss of the Aroha case, which had just been decided against him. Paul Tuhaere "prefers the Court as it is." Wiremu Patene says, "The Native Land Court is generally approved of by the Maoris. It is a good thing." W. Hikairo "makes no objection to the Court, but proposes an elaborate plan with regard to applications for investigation of claims, and for settling disputes out of Court." Major Kemp says, "There is much trouble and confusion about the Land Court….. We do not condemn the old Court; but we are anxious to have some alterations." Harawira Tatere says, "The Natives were better off under the old system of purchase by the Government." Henry Tomoana raises no objection to the Court, but points out the evils of the present system of Crown grants. The letter of Karaitiana (printed in the Appendix of 1869, A.? No. 22) expresses great dissatisfaction with the action of the Court, because it enabled one or more grantees to alienate their interest to the detriment of others, or to sell their lands in opposition to the wish of the tribe; but he does not advocate the abolition of the Court. And the same complaints are made by many other Napier Natives, who have been, more or less, sufferers primarily by the dishonesty of their own people.
The chief grievances complained of are—First. That the limitation of ten names to a Crown grant, and the giving grantees equal interests, have put it in their power to dispose of the property, or parts of it, without reference to other persons who were also more or less interested, which power has, in many instances, been exercised to the great detriment of those parties. Second. That under the present system the expenses of survey are enormous, and that the frequent sacrifice of property has been the consequence. There are other minor defects which I will presently notice. The weight of the first grievance has been felt most heavily in the Province of Napier, where much of the land is very valuable, where the Natives have acquired expensive habits and crave the means of indulging them, and where the settlers have been ready to purchase all that the Natives would alienate. The second grievance has been found to press chiefly in the northern part of the Island.
The Act of 1867 was intended to remedy the first, but it has not practically been effective. Strange to say, the Napier Natives, notwithstanding their experience, have not taken full advantage of the safeguards provided for them, and have registered their names in the Court as interested claimants, according to clause 17 of that Act, in only twelve blocks of some 42,000 acres. I attribute this chiefly to the ignorance of the mass of the Natives most concerned. They know nothing of the law, for they have never been instructed, and no translations of the Acts, or full information of their details, have ever been circulated amongst them. Even Henry Tomoana states he did not know till three years after the passing of the Act of 1867 that such a provision was in existence, and now he conceives its only object is to make the lands so treated inalienable except by lease. So that when they now wish to sell their lands they will not register any names besides those of the grantees (in some instances only one name has been put in a grant), and, when the Judge asks in the Court whether other parties are interested, there is no response. All concerned are anxious to facilitate the sale, and they will say nothing except to deceive the Judge. The framers of the Act of 1865 no doubt believed that the Natives would not fail to act honestly by each other; but the results of experience, and the statements of most of the Natives whom I have questioned on the point, prove that none can be trusted to do justice to his neighbour; and that, where the law puts the property of others in his power, the Native is not to be depended upon, for he will not hesitate to take dishonest advantage of it. Numerous instances are given from different districts, in which the grantees of property in which many are interested have appropriated to themselves the whole or the greater part of the purchase-money or rents, or have mortgaged the lands so deeply that, when sold, there was no residue to be divided amongst the outsiders. The Heretaunga Block is a notorious case in point. It was sold for £16,000 or £17,000, and Henry Tomoana himself, who was one of the grantees, confesses that the whole money (except what went to Arihi) was only sufficient to defray expenses and to pay the debts of the grantees to shopkeepers and others, and that not a penny in cash was received by them, or by the hapus who were also interested. And even the grantees themselves did not derive equal advantages. Henry's debts, by his own account, were £4,000; but old Waka Kawatini (if he is to be believed) owed only £200, and, with his people, claims more than one-half of the block, and declared that he got no cash payment at all. The ease with which grantees can mortgage or transfer the land has induced merchants, storekeepers, and others to give them large credit; and it is currently reported that unscrupulous and dishonest persons have encouraged their extravagance and vices to get them into their debt, have charged exorbitant prices for the goods they have supplied, and have taken advantage of their ignorance or intemperance to secure mortgages over the lands or portions of them: which was but a sure preliminary to transfer on their own terms. Henry Tomoana puts it forcibly: "The tradesman comes down on our heads like the monkey of a pile-driver, which crushes us by its weight and force." What money or credit the chiefs could get was too often spent in riot and debauchery, and the consequence had been that some of the principal men had been impoverished, the tribes having been defrauded, and the land has gone without a fair equivalent. As Tareha mournfully said, "Rum, rum, has dispossessed us." The Natives are greatly dissatisfied, and blame not in any way their own imprudence and dishonesty, but the operation of the law and the cupidity of the pakeha. There is, however, no doubt that this part of the law requires prompt and speedy amendment.
When it was known in Napier that I was inquiring into the working of the Native Lands Acts, I was invited by various persons to listen to statements that would have inculpated others, but, as I could not have given the accused the opportunity of vindicating themselves, I have avoided recording anything of this nature that was not necessary to demonstrate the defects of the law. It is not denied that inequitable transactions have taken place, and a commission of inquiry would be desired by those who have clean hands, and would like to be cleared from the imputations that have been cast on pur-page 44chasers in general; but it is to be considered whether any public or general advantage would be gained by such inquiry. The evil has partially cured itself; it is now difficult to induce some Napier Natives to put their names or marks to a piece of paper. They have suffered from their imprudence, and will not be so easily imposed upon again.
The Native Lands Frauds Prevention Act of last year is now in operation, and is stated to be working effectively; and, although its action is not retrospective, the Supreme Court can take cognizance of cases of actual fraud, either at the instance of Government officials or of the individuals aggrieved.
The reports of these transactions, and of the poverty and humiliation of great chiefs, such as Tareha and Hapuka, cannot but have been circulated through the country, and they have no doubt been triumphantly made use of by the King party to prove to the loyal tribes how little they can depend upon the justice and friendship of the Europeans. Even amongst the friendly tribes the alarm has been given, and, as Major Kemp reports, they have had a large meeting of chiefs from different parts of the country at Parenga, where they spent five days in discussing the subject, and are about to send a deputation to the General Assembly.
Efforts are being made also by those who have felt the evil to prevent the further sales of the lands, by reserving them wherever they can, and by nominating as grantees only those who are known to be opposed to permanent alienation. There has also been discontent at Napier, because the Act of 1869 does not give them full redress in the case of shares or interests in lands which have been sold by different grantees before the Act came into operation, and provide that these several interests should not be deemed equal.
It is difficult to interfere with past transactions without doing in justice to the European purchaser, whose dealings may have been in good faith, on the assumption that the law fixed the equality of the interests; but it seems to me, from Henry Tomoana's statement on this subject, that he does not understand that the restriction only applies where actual sale has taken place, and that the Act does allow retrospective action in cases of lease and mortgage; and this is another instance showing the necessity for instructing the Natives themselves more minutely as to the various provisions that have been enacted for the protection of their rights. The Act of 1869 has, I believe, the power of removing a great portion of the hardships of which he complains. To remedy these defects, the proposition of the Chief Judge, as stated in his opinion given in Court on the 7th April, 1868, to issue no grant "that will not, on the face of it, disclose the names of all the persons who are shown to the Court by evidence to be the owners thereof" (the limit being ten names, and the land being subdivided until it is brought under this condition), and, as suggested by Sir William Martin, the prohibition of mortgage or sale of undivided shares, will meet the principal difficulties of the case. Several of the chiefs recommend it, and, although it may be attended with some inconveniences, these are nothing as compared with the evils that exist and require prompt removal.
In the case of blocks of land to which the owners may wish to fix their title, without going immediately to the expense of subdivision, certificates as now provided by section 43 of the Act of 1865 can be issued, and no such certificates should be alienable in any way whatever, except by sale to the Government or Superintendents of provinces. And the lands held under such certificates should not be subject to local rates or any other taxation. This plan, although it may temporarily affect the transfer of interests, will help to restore the confidence of the Natives who are dissatisfied with the previous action of the law, and will diminish the desire which now prevails amongst those who have experienced past evils, to make absolutely inalienable larger tracts of land than they can ever advantageously make use of. The great difficulty of subdivision is the expense of survey, but where the Natives wish to sell, and the Europeans are ready to purchase, the necessary funds will be forthcoming.