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An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand

No. 2. — The Chief Protector to the Hon. the Colonial Secretary

No. 2.
The Chief Protector to the Hon. the Colonial Secretary.

On the Native Tenure of Land. Protector's Office, Auckland, 17th October, 1843.

Sir,—

Referring to your letter of the 15th December, 1842, requesting me to furnish information of the tenure by which the Natives hold their lands, I do myself the honour to submit the following remarks, founded upon my own observation and experience, and the reports furnished to me by the junior members of my department, for the information of His Excellency the Officer Administering the Government.

The time, place, the number of families who first landed on the shores of New Zealand, and whether such landing was effected only at one period and at one particular spot, or at different times and different places, are questions involving, much uncertainty, and will, I think, be esteemed unimportant to the present subject of inquiry. The Natives universally acknowledge one common origin; and the fact of their speaking one language, with very trifling variations of dialect, and observing the same customs, corroborates it. Different places, both on the East and West Coasts, are claimed by different tribes as the spot where the canoes of their ancestors first landed, and all agree that "Maui" was the name of their great progenitor. The "tohungas," or wise men, pride themselves on being able to trace the genealogy of their families up to "Maui;" some reckoning as far as twenty-six generations, which, allowing thirty years for each generation, would make the period of their landing about seven hundred and eighty years ago, or in the year 1063.

From a very early period the whole of New Zealand seems to have been divided into districts accurately defined generally by mountain-ranges or rivers, and must have been well known by the accurate description they have given to every little creek, valley, promontory, and bay throughout the Island, the names of which have been handed down by tradition from generation to generation, and winch will continue to define the territorial rights of the chiefs descended from the early proprietors.

If, as is the general impression of all who have given their attention to this subject, the Natives immigrated at different periods, we have at once a clue to the origin of titles. Each migration landed, subdued, and laid claim to a certain district now claimed by their posterity; and each party most probably acknowledged a leader, either nominated or assuming such character by superior powers, who would naturally be considered as the first chief of the iwi or tribe. Their children, and a portion of the iwi or tribe who might attach themselves to each particular child, may be considered as giving rise to the different hapu or lesser tribes; who, although a part of the original family, would form a separate and distinct community, uniting, however, in time of war to repel the common enemy, but claiming and exercising independent interests in the soil in time of peace. This at once brings me to the relation in which one tribe stands to another, the nature of their titles, and the causes of quarrel between the hapu as well as the general wars with the common enemy.

To illustrate this subject I will take the northern division of this Island, which is called the residence of the Ngapuhis: that is to say, the Natives living between the North Cape and Whangarei would be invariably styled Ngapuhi by the inhabitants of the Thames and Waikato. Nevertheless the district includes numberless hapu or smaller tribes with independent interests, and not un-frequently at war with each other. The Thames Natives, on the other hand, are known to the Ngapuhi as a body by the name of Ngatimaru; but they are divided amongst themselves into four or five considerable tribes, and these again into many hapus who unite for the common weal. Again, bravery in war and consequent power and rank as a chief will not always determine the individual a land proprietor: a man may be a great general, but a small landholder. From hence numberless mistakes have arisen amongst Europeans, who have thought themselves especially safe in purchasing land from a powerful chief, supposing that he must of necessity be a large landed proprietor; whereas he may have assumed most of his territorial rights, and the titles by which he claims may not only be disputed but rejected. It is astonishing what pains have been taken by. Europeans with Native warriors to persuade them that, as conquerors, they had larger territorial rights, and ought to assert page 3 and obtain them by any means, however contrary to Native usages; and in not a few instances large deposits have been given to these chiefs by Europeans for lands thus claimed by assumption.

At what time the boundaries of the districts of the respective chiefs of the Island were defined as we now find them, it is impossible to ascertain; but I think, from the statements of the most respectable chiefs, it may be inferred that the general division of this country was made at least two centuries ago. The Ngapuhi, notwithstanding their extensive conquests, obtained within the last twenty-five years, still confine themselves to their ancient territorial rights, and the Ngatiwhatua, although ofttimes defeated and almost annihilated, still assert their claim to the territorial possessions of their ancestors.

It is then, I think, evident, that the chiefs of every tribe and hapu, as well as the head of every family belonging to the tribe or hapu, have distinct claims and titles to lands within their respective districts. At the same time it must be remembered that they have joint interests in many of the lands The particular claims of the chiefs, hapus, and families are to lands either subdued or brought into cultivation, or upon which they have exercised some act of ownership — lands where they been accustomed to procure flax or erect their weirs for catching eels, or where they have built a substantial house: in such cases they claim a particular property; none but the person so claiming can give a title to the land; nor can he be dispossessed thereof. He may forfeit his right by accidentally killing a neighbour, by adultery, or by migrating to a different tribe and district. In either of the former cases the land is taken possession of by the injured party, whose title is recognized as good by the tribe in general; in the latter case the possession reverts to the relatives of the emigrant. With the exception of these cases of forfeiture they descend from father to son in regular succession; the eldest son inheriting his father's rights, the younger brother claiming also a portion. In the event of no issue from the elder brother the property reverts to the second son of the family, and this continues in the line of the brother or brother's children.

If a chief has a large family, they are each early taught to acquire an individual or particular property both in the soil and its produce, by the following plan: As soon as a child is able to plant a potato he is provided by his parents with a basket of seed, a piece of land is prepared he plants his basket of seed upon it, and has henceforth an exclusive claim not only upon the produce but on the land itself, which ever after is considered to be his property. Sometimes a slave is set apart to provide for a child from his infancy, and to him the basket of seed is intrusted. By this procedure a double object is effected. The children are early habituated to habits of industry, and provision is made for their maintenance in some measure independent of the parent; but at the same time it must be confessed that the plan tends very much to weaken parental authority, and creates a premature spirit of independence in the child, who is not only maintained and clothed out of the produce of his own land, but from the same source derives a fund which procures him his gunpowder, implements of agriculture, &c.: in short, it is the seed of his own and his family's future prosperity. In this way families hoe and cultivate their own ground, enlarging their cultivations from time to time, thereby establishing an indisputable title to such lands as their special and particular property.

In other respects their claims and titles become more general, the hapus and families claiming in common with the principal chiefs what may be very properly termed their waste lands; but even here they must be able to substantiate some sort of title which is considered equitable, such as having been the first discoverers, having kindled their ovens, built canoes, or exercised some such other act of ownership which gives them the preference over these lands. The families have, in common with the chiefs, the right of keeping pigs, gathering flax, shooting or snaring pigeons, catching rats, ducks, kiwi, digging fern-root, &c., or of gathering the natural productions of the woods and open country for the purpose of food &c.; every individual of the tribe having and exercising these privileges in common, but still acknowledging the rights of some family or individual member of a family to dispose of such property—that is, as president, head of the family, or chief of the tribe or hapu, to make the first proposal for such an alienation—yet they would not consider the purchase valid without the cousent of the majority of the principal men of the tribe, and of the payment for the same every individual would expect to receive his appropriate share. Lands that are thus possessed in common, involving the interests of so many claimants, are exceedingly difficult to purchase, and may be reckoned as among the most fruitful sources of quarrels and disturbances. It frequently happens that two Natives, equally interested in the same lands, disagree on the question of its disposal: one is willing and anxious to sell, the other is not, and numberless animosities originate from this source.

This common right and title to property is not confined exclusively to land, but embraces almost every other description of property. A canoe generally belongs to a family, and sometimes to a hapu, in consequence of each individual assisting in its formation or advancing a portion of his property for its payment. A cow or horse may have twenty claimants; and it was not an uncommon thing a few years ago for an axe or a spade to belong to three or four individuals, arid a musket, to ten or twelve, each individual having contributed something towards the purchase of these articles. A blanket, bought with the proceeds of a child's farm, would be recognized as the property of the child, although appropriated to the use of the parents, and any attempt to alienate such property without the concurrence of all concerned would be resisted as unjust and oppressive; and the buyer, even supposing him to have given double the value of the property, would be considered equally culpable with the other. No people in the world are more particular than the Natives on these subjects, and more especially in regard to their lands; and, in order to avoid quarrelling, furrows or watercourses are usually formed in their family cultivations, in order to divide and designate particular property; and on the same principle, and for the same reason, if a little more distantly related, and these cultivations are adjacent to each other, a dividing lot of uncultivated laud will be left, or a small patch of wooded land to which both parties have an equal claim, but which neither dare destroy for fear of exciting suspicion of encroachment and thereby generating a quarrel. Between distant tribes there as universally a much larger space of common unoccupied property left for the same purpose, and but very few tribes are neighbourly enough to venture to cultivate on the opposite banks of the same river unless they are desirous of collision. Such are their natural jealousies on this subject; hence it is no uncommon thing page 4 to find a space of some miles of uninhabited and uncultivated country forming the grand division of the district.

To obtain a specific title to lands which are held in common, there must be, as I observed before, some additional circumstances to support such pretensions, as subduing and appropriating, or exercising any particular act of ownership upon the land in question: the first discovery of a tree, the shooting of a pigeon, constructing an eel-weir, digging fern-root, making a Native path or foot road, the accidental loss of a friend on such spot, receiving a wound or recovering from sickness at such place—all or any of these acts give an undeniable right to special property in land heretofore considered common; and, frivolous as the origin of such titles may appear in the estimation of civilized nations, I very much question whether better could be produced to a vast deal of our own possessions. Surely if the first discovery of an island, whether inhabited or not, is admitted as establishing a valid claim to some of the most important countries in the world, the Native title; founded both upon discovery and possession, is still more apparent; and their usages in the acquirement of special titles are the most natural and reasonable that can be adduced by any nation or people.

The changes that have taken place upon the Island during the last century do not appear to be very important. The Ngapuhi, as a body, still claim the northern part of the Island, the Ngatimaru the Thames, the Waikato Natives their district, and so on throughout the Island. Nevertheless they have been continually at war with each other, and many changes have taken place in the internal divisions of the country. Sometimes a tribe has been defeated and driven to the extreme of it district, yet always returning and eventually claiming the same territory. Twenty years ago there was not a Native on the Thames in consequence of Hongi's wars; they were driven into the interior; not a native of Waikato was to be seen within a hundred miles of Auckland, nor a vestige of the Ngatiwhatua Tribe, as an independent people, to be discerned: but since then the Ngatimaru have returned to this part of their district, the Waikato to the Heads of Manukau, and the Ngatiwhatua to Waitemata and Kaipara. From these facts it appears pretty evident that conquest, unless followed by possession, forms no title. Were the Ngapuhi to claim the right of selling or exercising the sovereignty over the Districts of the Thames, Kaipara, or Waikato, in virtue of their former conquests, their pretensions would be treated as contemptible and absurd; and so distinctly is this principle recognized that I have no doubt that any attempt to support and maintain the validity of titles derived from conquest only, would be met by a most determined resistance, even if attempted by Her Majesty's Government. I have known slaves tenaciously maintaining their territorial rights while in a state of captivity, but I never knew a master to claim by virtue of his slave, or attempt to advance any pretensions founded upon the capture of a landed proprietor; but I have had large offers of land for sale by Natives who are still in captivity, and have been warmly reproved by these men for doubting the validity of their titles.

As I have already observed, great changes have taken place in the internal regulations and divisions of the districts, and in many cases lands have completely changed owners; but in every case that I can recollect possession has followed immediately upon conquest. There is scarcely a spot in the Bay of Islands but has changed masters—where the conquered either amalgamated with their conquerors or retired to a distinct part of their possessions. By the latter step they maintain their independence, and still claim all the lands not actually in possession of their conquerors; but by the former they only claim what they cultivate specially, and in common with their conquerors, but conceding to them the precedence. In this way Paroa, Kororareka, Whangarei, and the North Cape have completely changed hands, and are now possessed by different tribes from those who held them twenty years ago.

Tribes who live upon the borders of districts commonly intermarry with their neighbours on either hand, and are very often neutral in wars which occur between the two tribes to whom they are related. If the invasion comes from the right, they fly to the district of their invading relatives, and are generally employed in negotiating peace with those on the left, and invariably afford protection and shelter to refugees; but they claim no right to territory in virtue of their offices of kindness, not even if the defeated party who flew to them for succour should become amalgamated with their tribe. For instance, Tirarau, Matiu, and Parore, who are Ngapuhi chiefs, sheltered a great number of the Ngatiwhatuas, who fled before the victorious Hongi, and for many years they lived and cultivated together; but neither of these chiefs claimed the land of their protégés. Several sales of land about Kaipara belonging to the Ngatiwhatua were effected during the time the parties lived together, but reference was always made to those who had placed themselves under protection, and their title as the original owners of the soil invariably acknowledged. Nevertheless the price or consideration given for the land would be divided amongst both parties, protectors and protected; but the purchaser would have no valid title to the land who bought it of the protectors irrespective of the protected. Again, in gratitude for services performed, a piece of land might be presented by such parties to their protectors, who would thenceforth claim in virtue of the gift; but, on the other hand, land allotted by the protectors to those who fled to them for protection for the purposes of cultivation would not be considered as alienated—the protected only claiming so long as they cultivated. Neither would they be consulted in effecting a sale of the land, excepting upon those precise localities which they had in actual occupation. In the event of such cultivation being abandoned it would revert to the person who granted it, unless he married and resumed it as the dowry of his wife; it would then be hers and descend to her lawful heirs, but in default of issue of her body it would revert to his family.

By intermarriages chiefs sometimes claim in distinct districts, in which case it is usual to send a child of the family to the spot to maintain his father's or mother's territorial rights. In this way the Ngapuhi chief Moka, who had a large family by his slave wife from Whakatane, sent one of his sons to take possession of the property claimed through his wife. The child's title would be immediately acknowledged, although the father himself would uot be allowed to lay claim to an acre. Te Uira, who was a Ngapuhi chief, but living in Hawke's Bay, sent up his son to the Bay of Islands to take possession of his property; the claim was universally admitted, and he has since sold several portions of the land undisputed. But, if the parent neglects to take possession or maintain his child's title by page 5 sending some branch of the family to the spot, I very much question whether the grandchild could maintain or make good his title.

The claim to Taranaki by the Waikato Natives is good so far as they have taken possession; but they did not wholly succeed in driving the Natives out of that district, who maintained their independence by resorting to the different pas along the coast. I should therefore consider the principal right to the land at Taranaki still vested in the original inhabitants.

Again, the titles of the tribes about Port Nicholson to the land in the Taranaki District cannot be wholly extinct if they have kept up a friendly intercourse with the residents. Rauparaha, who conquered and took possession of part of this country, would, in connection with his followers in the vicinity of Cook Strait, have large claims, but his title would no doubt be disputed by the original proprietors so soon as they were in a position to maintain their claim. A tribe never ceases to maintain its claim to the land of its fathers, nor could a purchase be considered complete and valid without the concurrence of the original proprietors. If a conqueror spare the lives of the conquered, and they thenceforth become amalgamated with his own tribe, he infallibly secures his own title, uniting the claims of the original possessors with his own. A striking instance of this sort occurred inthe northern part of the Island. The chief Hongi, in selling a portion of land to the Church Missionary Society for a mission-station, acted upon this principle. The original proprietors were greatly reduced as a tribe, and were driven from many portions of their district by Hongi's people. Peace being restored they amalgamated themselves with their enemies. Hongi, in order to secure his title and to show his respect for the customs of the Natives, upon receiving the price of the land in question presented the whole to the most influential nian of the reduced tribe to secure his approbation of the sale, which by this means was accomplished, and the payment was, as a matter of course, returned to Hongi. The same chief, Hongi, was urged to give up a small piece of cultivated ground to a Mr. Stack as presenting a more eligible site; but, though he wished much to oblige his friends the missionaries, and was in the best position for doing so, being by far the most influential chief of the northern portion of the Island, he distinctly stated that he could not do it: if the missionaries wanted the land they must treat with the people who cultivated it, to whom alone it belonged. I mention these facts to show how very tenaciously they maintain their customs and usages on all subjects connected with their lands; so much so that a title would be considered doubtful if, during the negotiations for the sale, objections against parting with it were overruled by the importunity of the buyer. The Natives cannot stand against the importunity of those they deem their friends, and never fail to say in such a case that a consent was extorted from them. The person who makes the first proposal to alienate a piece of land is in the most disadvantageous position, and on him is thrown all the blame in case disputes arise. Possession of land, even for a number of years, does not give a right to alienate such property to Europeans without consent of the original donor of the land; but it may be continued in the possession of the descendants of the grantee to the latest generation.

The foregoing are some of the most important features of the nature of the tenure whereby Natives hold their lands, and embrace all the most prominent points of information contained in the remarks of the gentlemen of my department who have reported to me on the subject.

I have &c;

George Clarke,
Chief Protector.

The Hon. the Colonial Secretary.