Mr. Alexander McDonald; and the Intended Trust.

I shall now proceed to review very briefly the evidence of Mr. Alexander McDonald and the witnesses called by him. But before doing so there is one matter I should like to bring to the recollection of the Commission, because it shows so clearly the animus against me on the part of the Minister of Lands.

Under cross-examination Mr. McDonald admitted that, at Mr. J. G. Wilson's suggestion, he went to Wellington to show to Mr. McKenzie in manuscript, a letter which he had addressed to the Member for the District, under the heading of "The True History of the Horowhenua Block : being a Reply to Sir Walter .Buller's Pamphlet." The pamphlet in question is little more than a reprint from Hansard of my defence at the Bar of the House, before the passing of the Bill which set up this Commission.

Mr. McKenzie had gone South, and Mr. McDonald was referred to Mr. O'Hara Smith, who informed him that, under direction of the Government, he was himself preparing a pamphlet " in reply to Sir Walter Buller." He said he would like to embody portions of McDonald's letter, and for that purpose desired to see it published in some newspaper. Mr. McDonald left his letter with O'Hara Smith, who subsequently forwarded him a type-written copy of it for his signature. Mr, McDonald went back to Wellington and had four interviews with Mr. McKenzie. At one of these interviews the Minister offered to appoint McDonald as agent for the Muaupoko before this Commission—the tribe not having been consulted or page 10 communicated with on the subject—and to pay him out of Government funds. Mr. McDonald accepted the appointment. He came back to the district, and on the 27th February handed his letter to the Manawatu Farmer for publication, the Royal Commission having in the meantime been appointed. The day following (28th February) Mr, McDonald receives his appointment from the Government, The letter appears in the Manawatu Farmer, filling thirteen columns of that journal—to the exclusion of all other reading matter—on the 4th March, just two days before the opening of the Royal Commission of Levin. The letter is couched in very intemperate language, and betrays the partizan in every line. Sir, so flagrant a breach of the well recognized rule which prevents comment on a case sub judice calls for no condemnation from me. It speaks for itself. I will do Mr. McDonald the justice, however, to say that when I put the question to him straight in the witness box, he frankly admitted that he himself considered it a wrong thing to do. I have called attention to the surrounding circumstances, as admitted by Mr. McDonald on oath, and I leave the Commission to draw its own inferences from the facts. My own belief is that under Ministerial pressure McDonald did what his own sense of right and wrong condemned, and that he was perhaps " more sinned against than sinning."

Under cross-examination Mr. McDonald admitted that when he wrote telling me of his intention to contradict some of the statement in my pamphlet, I replied at once saying that everyone was anxious to get at the truth, and that he would soon have an opportunity of placing his version of the facts before the Royal Commission, he also admitted that the "facts" he challenged are not statements in my own pamphlet, but allegations in Major Kemp's petition to the House in 1894—drawn by myself upon instructions received, and set out in the pamphlet. He admitted having received from me, more than a year ago, a printed copy of that petition, and that he did not then think it necessary to notice the statements which have now so exercised his mind ! But at that time I had not had what he has been pleased to call my "quarrel with the Minister of Lands." I submit that further comment is unnecessary.

Now I come to Mr. McDonald's evidence before the Commission In asking you to reject, Sir, as the Supreme Court did, Mr. McDonald account of what happened in the Court of 1886, where his evidence is in conflict with that of my witnesses, I do not wish for one moment to impugn that gentleman's veracity. I would remind the Commission of what Mr. McDonald said in the Supreme Court at Wanganui: I find great difficulty in disentangling in my mind what took place in 1886) from what has taken place since. I find great difficulty in doing so." That statement no doubt explains all the discrepancies.

As to the division Court of 1886, Major Kemp gave the Commission a very clear and circumstantial account of all that happened, both page 11 outside the Court, at the various meetings of the tribe, and inside the Court when the "voluntary arrangements" were given effect to, by the issue of orders for certificates of title. His account is borne out, in every material particular, by the other witnesses whom I have called, and by the minute-books of the Native Land Court, and is corroborated by Mr. J. A. Wilson, the Judge who presided on that occasion.

I submit that the evidence given by my Maori witnesses—Major Kemp, Te Rangimairehau, Raniera Te Whata, Kerehi Tomo, and Makere Te Rou—is consistent throughout and has not been shaken in one single particular. Their story is simple and straightforward—the same story that they told in the Supreme Court at Wanganui.

It was decided by the general body of Muaupoko to reserve No. XI, (containing about 15,000 acres) being the residential part of the Block—comprising the houses and the cultivations, the fishing grounds and the burial-places—as a permanent home for the tribe, and with this view it was agreed outside that this land should be put in Major Kemp's name as trustee or caretaker. Major Kemp and my other witnesses say that the consent was unanimous. Mr. McDonald says it was only a "large majority," but he nevertheless admits that he went into Court and asked for an order in Major Kemp's name alone, in pursuance of a "voluntary arrangement" come to out of doors; so he must have believed that the consent was practically unanimous, or he would have been deceiving the Court. As an expert he must have known that no other "voluntary arrangement" could have been assented to by the Court. At this stage of the proceedings the Judge called for objectors, and then Wirihana Hunia handed to Major Kemp, on a slip of paper, the name of Warena Hunia. Then came the adjournment to the side room—an adjournment at Major Kemp's suggestion for a few minutes some say five, others ten) for the purpose of arranging the matter. Then they returned to Court and Kemp, having assumed the responsibility of putting in his tamaiti along with himself—in spite of the remonstances of the people—handed in the two names. The people could not withstand Kemp in anything; but they manifested their dissatisfaction by leaving the Court in a body. But although dissatisfied, they still believed that Kemp and Warena were there as trustees only (hei kai tiaki). It was not till the partition Court of 1890 that they discovered that de jure they had become actual owners of the whole block in their own right.

Now, is it conceivable—on the hypothesis set up on the other side that this land was absolutely given to these two chiefs to do what they liked with—is it conceivable, I ask, that this should have been done by the Muaupoko tribe without a word being said on the subject at their outside meetings ? I ask you, Sir, whether you can believe that, without a single word of discussion, the whole body of the Muaupoko people could have agreed to make an absolute gift of 15,000 acres to two of their chiefs—one of whom at any rate had already had page 12 very liberal concessions in land and money;—and that 15,000-[unclear: ac] block, too, containing all the tribe most valued—the land on which they had been born and where they had always lived—their houses, their cultivations, their fishing-grounds, their burial-places—the [unclear: Horowhen] Lake, which was a most valuable possession to them on account of [unclear: it] eels and kakahi shellfish—and the coast line which afforded them [unclear: im] plentiful supply of food all the year round? I ask the members of the Commission, as reasonable men, whether it is possible that this [unclear: cou] have happened without at any rate some sign of what was being [unclear: do]—some speeches setting out the generosity of the act—some [unclear: farewe] to the lands that were being given up—some appeal to the [unclear: chiefs] have regard for the people who were endowing them so handsomely [unclear: of] Major Kemp and the Mnaupoko witnesses all say that there was not [unclear: to] word of the kind, Mr. McDonald is quite silent on the point, [unclear: and]Wirihana (his brother Warena being absent at the time) does [unclear: not] pretend to say that the handing over of this great tribal estate [unclear: was] accompanied by a single word of sentiment or explanation. [unclear: kem] declares that everyone knew perfectly well that it was to be [unclear: reserve] for the resident section of the tribe—that he was to go into it [unclear: as] caretaker only—that he took his young relative, Warena Hunia, [unclear: is] with him on the same terms; but that as trustee he was to be [unclear: exercise] large discretionary powers, for he gave to the people publicly, and before the final act in Court which fixed the title, this warning: "[unclear: Any] of you who may be found alienating the portions allotted to you will be shut out from any future participation in this tribal reserve, No. [unclear: XII] I ask, is this theory of an absolute gift by the tribe to these [unclear: la] persons consistent with the admitted fact that, even at the [unclear: last] moment—in the little side-room of the Court, after Wirihana [unclear: be] proposed his brother's name—Major Kemp offered to put in [unclear: Ihai] Taueki's name instead of his own, and on Wirihana objecting, [unclear: Mak] exclaimed, "Why, what is your objection to the old man?" [unclear: (meaning] Ihaia, the ariki or hereditary chief of the tribe.) All the [unclear: circ] stances of that meeting in the side-room—the discussion there—[unclear: that] voluntary consent of Kemp to the admission of his " young relative [unclear: "—]the opposition of Muaupoko and their leaving the Court in a [unclear: temper-] are inconsistent with Warena's story that this land was to be [unclear: hence] the property of the two alone.

On this point the evidence given by Te Rangimairehau was [unclear: a] follows:—

By Sir Walter Buller; —

Q. Now, with regard to No. XI; the large block with your houses, [unclear: eft] tions and burial places. Is it not a fact that this block comprises all the [unclear: may] of subsistence the Muaupoko have—their fishing-grounds, cultivations, [unclear: gal] &c?

A. Yes; they are all there.

Q. That is the block where all your elders were born ?

A. Yes.

Q. And in this block lies the Horowhenua Lake on which you have subsisted all your life ?

A. Yes, on the eels and shell-fish.

Q. What did your tribe decide to do with this big block when they were making these subdivisions ?

A. It was agreed that this block should be allotted or apportioned for the persons who had actual occupation of it—that it should be left alone, and that it should be for them to say whether it should be divided or left in one block—for the persons who had led the natives in ancient years and those who represent them.

Q. As distinguished from whom ?

A. The persons who had got lands in different places and who had been provided for.

Q. Was it, so far as you know, distinctly understood by all your people that this block would be reserved for the residential section of the tribe?

A. That was what Kemp said.

Q. Did the whole tribe agree to this ?

A. Yes; we all consented. Some expressed their content with the arrangement, and others remained silent but were satisfied. I did not hear one dissentient voice.

Cross-examined by Mr. Stevens :—

Q. Did Kemp after the division of the land offer his section of the people a Crown Grant or title for any portion of that half of No. XI. which was held by him?

A. Kemp said, " I am a kaitiaki; the land belongs to the tribe." Warena said: " No; the law has given us the land."

Q. Did Kemp after the division had been made, say; " There is my portion of the land for the people "?

A. Yes; he said so, but we did not approve of that; we wanted the whole to be given back.

Q. Do you think that the whole tribe were satisfied with Kemp's action ?

A. Yes; Kemp always said : " The land belongs to the tribe." Warena said: " I have no tribe; the land belongs to myself."

Q. If the people knew that Warena wished to stand alone, why did they not object to his being put into the title ?

A. We did not discover till long afterwards that such were his intentions.

Q. Did not Warena offer 3,500 acres to the people ?

A. Yes, afterwards, when he found he was in the wrong, he proposed to give 3,500 acres on the sandhills.

Before passing on I would just say of Mr. J. A. Wilson that he is acknowledged to be one of the ablest and most experienced of the Judges on the Native Land Court bench. You, Sir, must have noted with what independence and decision he gave his evidence; and, considering that ten years had elapsed since the events of which he had to speak, his memory was remarkably clear. Practically repeating what he had deposed to in the Supreme Court, he spoke with no uncertain voice about the intended trust.

Mr. Wilson has explained that, after ceasing for an interval of some years to be a Judge of the Court, he destroyed such of his notes as did not possess historical interest, these being his private property; and it has been stated in evidence that the Assessor lost his notes through a fire in his house. Mr. Stevens has commented on what he calls the "extraordinary circumstance of the destruction of valuable documents." But I am quite sure the Commission will accept the explanation already given. Mr. Wilson said in effect that he never dreamt that any question of this kind could ever arise. No one could possibly have foreseen it. The suggestion of the wilful destruction of evidence is, I submit, quite unwarranted.

Now, the conclusion which I have come to, and the one which believe the Commission will come to also, is that there was great bungling at the Court of 1886. The Court itself could do noting Its hands were tied by the provisions of the Act, which compelled the Judge to give effect to any voluntary arrangement come to out of Court. Mr. McDonald claims the credit of having superintended this " voluntary arrangement," and guided the tribe in what they were doing. I am sure Mr. McDonald's intentions were of the best; but it is perfectly clear from the evidence that his intervention at that time was a most calamitous thing for the Muaupoko tribe, for, as the result proves, it has landed them in endless litigation, much tribal heard burning, and heavy costs. There can be no doubt that it arose from Mr. McDonald's ignorance of both English law and Maori custom. To the present day, so far as I can understand him, he does not believe that there was any trust in respect of Blocks Nos. XI and XII. The fact is that Mr. McDonald has no clear idea of what legal or equitable trust is. He considered himself for years the absolute owner of a valuable block of land at Awahuri till, in the end the Supreme Court declared a trust, stripped him of the land, and practically ruined him—for which not one of his many friends was more sorry than myself. Indeed, when in practice I, over and once again, refused to take a brief against him in this matter, so satisfied was I of his bonâ fides. But what I wish to say is that the strongly page 15 expressed opinion of such a man, on such a point, should be received by the Commission with much caution. But as to Mr. McDonald's very positive belief that there is no trust, I would ask leave to read the following passage from the judgment of the Chief Justice, afterwards confirmed by the Court of Appeal :—

Mr. McDonald says that he was present at the last meeting at which the matter was discussed, namely, a meeting held on the day when the Court was sitting to make the order, and to enable which meeting to be held the Court granted a short adjournment. Mr. McDonald says that he did not hear any expressions used conveying the meaning that this Lot XI. was held upon trust, or that the persons whose names were to be put in the order and Certificates were trustees. He denies that the Maori word ' Kai-tiaki,' meaning ' Trustees,' was ever used at that meeting or at any of the earlier meetings about the sub-division of the block at which he was present. It appears to me, however, certain even upon Mr. McDonald's evidence, that nothing was said or done at this last meeting which justifies the conclusion that the persons interested in the land, the registered owners, intended to give up their beneficial interest in it to Major Kemp and the Defendant.

But let us see what the evidence brought forward by Mr. McDonald, after being examined himself, amounted to. He called four witnesses. His leading witness was the young woman, Te Raraku Hunia. It turned out that she was little more than a child in arms—less than three years old—-when the sitting of 1873, about which she was called to give evidence, took place. She frankly admitted that her mother—who was admittedly a woman of rank—never told her a word about it. The girl's evidence was so ridiculous that neither the Commissioners nor myself, nor any of the agents, thought it necessary to put a single question to her. The next he called was Hoani Te Puihi, but in less than half an hour he was treating him as a hostile witness, and got hopelessly involved with him. This witness was brought in to curse us, but ended by giving us his blessing. He admitted that his real ground of complaint against Major Kemp was that, when he negotiated the sale of the Levin township to the Government, he had failed to reserve Hoani's little home at Tirotiro, where, as he naively told us, he had lived so happily with his three wives—the three model Wives who never asked for any share of the rents and never gave him any trouble ! Hoani, in his examination in chief, could only remember receiving £10 from Major Kemp from 1873 to the present time; but, under cross-examination, this gradually swelled to about £1500, all of which he had carefully distributed among his hapu, the Ngatipariri. Mr. McDonald, by the way, had sworn that Hoani Puihi had "not a drop of Ngatipariri blood in his body." Hoani himself deposed that he was the head and front of that hapu and he traced his direct descent from Pariri by two separate and distinct lines. As to the paymeat of £2000 by the Government to Warena Hunia, be condemned it altogether, and demanded that the money should be paid over again.

Mr. McDonald's two other witnesses were unwilling ones, and he had to apply for subpoenas to compel their attendance. Of these, Waata Tohu gave evidence entirely in Major Kemp's favour on every point; and the other witness, who was hostile to Major Kemp, admitted that he had on a former occasion (the partition Court of 1891) committed wilful perjury. It is not necessary, therefore, to take any notice of what he said before the Commission.