VII. Mr. Spain, formerly Her Majesty's Commissioner for determining Titles to Land in New Zealand.—1846.

Although a tribe might have marched through a country, conquering all the Natives and occupying the ground over which they passed, yet if they failed to retain the lands so conquered in their possession, and allowed the former owners still to occupy it, or to return immediately afterwards, and cultivate it without interruption for a period of years, in that case the consent of the conquerors to a sale to the Europeans, without that of such resident Natives, could not be admitted by me as a valid purchase. And I know of no rule laid down as binding upon or generally adopted by the nations of Europe, in colonizing a new country peopled by aboriginal inhabitants, which would justify the taking of land from the actual occupiers and cultivators of the soil without their consent. On the contrary, I had the honour to quote, in my last despatch, the very opposite doctrine, as laid down by De Vattel. …

I have set it down as a principle in sales of land in this country by the aborigines, that the rights of the actual occupants must be acknowledged and extinguished before any title can be fairly maintained upon the strength of mere satisfaction of the claims of self-styled conquerors, who do not reside on nor cultivate the soil: in short, that possession confers upon the Natives of one tribe the only and real title to land as against any of their own countrymen; and that the residents, whether they be the original unsubdued proprietors, the conquerors who have retained their possession acquired in war, or captives who have been permitted to reoccupy their land on sufferance—in all cases the residents, and they alone, have the power of alienating any land…..

It appears to me that those Ngatiawa who, having left [Taranaki] after the fight sought for and page 21obtained another location, where they lived and cultivated the soil, and from fear of their enemies did not return, cannot now show any equitable claim, according to Native customs or otherwise, to the land they thus abandoned. Had they returned before the sale, and, with the consent of the resident Natives; again cultivated the soil without interruption, I should have held that they were necessary parties to the sale.

During my residence in this country, in the execution of my commission for a period of between three and four years, I have taken every opportunity of ascertaining by every means in my power all Native customs respecting the tenure of land; and, in my decisions, I have endeavoured in every instance to respect them, where certain; and, where doubtful, or not clearly ascertained, I have allowed justice, equity, a common-sense view, and the good conscience of each case, to supply their place.

Bearing all these points in mind, I am of opinion that the adoption of a contrary doctrine to that which I have just laid down would lead to very serious consequences, not only as regards titles to land between the aborigines themselves, but also as between them and the Europeans…..

The question, then, which your Excellency has raised, turns upon whether slaves taken in war, and Natives driven away, and prevented by fear of their conquerors from returning, forfeit their claims to land owned by them previously to such conquest. And I most unhesitatingly affirm that all the information that I have been able to collect as to Native customs, throughout the length and breadth of this land, has led me to believe and declare the forfeiture of such right by aborigines so situated. In fact, I have always understood that this was a Native custom fully established and recognized; and I never recollect to have heard it questioned until your Excellency was pleased in the present instance to put forward a contrary doctrine. Since that time I have made every further inquiry in my power amongst competent and disinterested persons, whose testimony has fully confirmed my original opinion.

I am fully of opinion that the admission of the right of slaves, who had been absent for a long period of years, to return at any time and claim their right to land that had belonged to them previously to their being taken prisoners of war, and which, before their return and when they were in slavery, had been sold by the conquerers and resident Natives to third parties, would establish a most dangerous doctrine, calculated to throw doubts upon almost every European title to land in this country, not even excepting some of the purchases made by the Crown; would constantly expose every title to be questioned by every returned slave who might assert a former right to the land, let the period be ever so remote; and would prove a source of endless litigation and disagreement between the two races, a result which must soon stop the progress of civilization amongst the Natives, so essential to their amelioration.—[Reports to Governor Fitzroy: in Parl. Papers, 8th April, 1846.]