The Treaty of Waitangi; or, how New Zealand became a British Colony

by Thomas Lindsay Buick

MEMORIAL OF TAWHIAO AND OTHERS TO THE QUEEN

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street, August 9, 1884.

Sir—I have the honour to transmit to you a copy of the memorial which has been presented to me by the Maori chiefs now in this country.

I understand that it is contended, in support of the action taken by the Maori chiefs in making this appeal to the Imperial Government, that the powers granted to the Queen by section 71 of the New Zealand Constitution Act, 15 and 16 Vict. cap. 72, are still in full force, and that Her Majesty may properly be invited to provide by letters patent that the laws enacted by the Legislature of the colony should not extend to the Native territory; and that the Native laws, customs, and usages, modified as might be thought desirable, should prevail therein, to the exclusion of all other laws.

I shall be glad to receive the observations of your Government on this point, and also any statements which they may desire to make respecting the matters referred to in the memorial.—I have, etc.

Derby. Governor Sir W. Jervois, G.C.M.G., C.B., etc.

ENCLOSURE
(Confidential)

Salutations!—May the Queen and her family long live! May her Government and the people of England live! May God protect you!

This is an address from the Maori chiefs to the people of England. Strangers landed on a strange land:

We, the Maori chiefs of New Zealand, have come to this distant land into your presence, on account of the great disaster which has overtaken your Maori race, which is beloved by the Queen and the people of England. Accordingly we have now swum the Ocean of Kiwa, which lies between us, and have reached England in safety, the source and fountain of authority, to the place where the Queen lives, that she may redress the ills of the Maori race inflicted on them by the Government of New Zealand, who have not directed their attention to right those wrongs up to the present time, and those wrongs are still being committed; nor is it because the Maoris are adhering to evil practices, and so causing trouble between the two races; and therefore, owing to this continued inattention of the Government, this is presented as an appeal to the highest authority. And because there was a tender regard displayed by the Queen to her Maori race, as shown in the Treaty of Waitangi, therefore it is well that those contracts and these ills should be brought before you for your consideration.

Firstly, the words of the Queen were, that Victoria, Queen of England, in her kind regard to the chiefs and the tribes of New Zealand, secured that their rights of chieftainship and their lands should be established to them, and that peace should be made with them.

Secondly, that the Queen of England shall order and consent that the chiefs and tribes of New Zealand preserve their chieftainships, their lands, their villages, their forests, and their fisheries.

Thirdly, that the Government of the Queen shall consent and order that the Queen shall protect the Maoris of New Zealand, and shall give them her laws in like manner as they are given to the people of England.

But these contracts have been trampled upon by the Government without exception. The first case of the Government purchasing land was in the year 1855. They paid a deposit for lands to some tribes without knowing whether the lands belonged to them, and much land in the Waikato, Hawke's Bay, and other places was bought in this manner; and in consequence the Maoris drew a boundary at the Mangatawhiri River, to separate the ground still held by the Maoris, and set up a head, namely, Potatau[197]—of the Maori people, who should prevent disputes between the Natives who sold and those who retained their lands, always acknowledging the supremacy of the Queen; and this provision was made over all lands throughout Taranaki, Taupo, and other parts.

In the year 1858 the Government purchased Waitara from Te Teira, Wiremu Kingi, the paramount chief of that tribe, prohibiting the sale; but the Government sanctioned the purchase from Te Teira. Wiremu Kingi drove off the surveyors, and the Government waged war throughout Taranaki and confiscated the land.

In the year 1863 a proclamation was issued by the Government that all the Natives adhering to the resolve not to part with their lands should retire across the boundary-line at Mangatawhiri; they went and the Government followed them across the boundary and fought them. Another Proclamation from the Government declared that the Waikato chiefs adhering to the Queen should aid General Cameron, and that the Government would protect their persons, their lands, and their property. Te Wheoro and his tribe aided General Cameron up to the very last, but their lands (amounting to about 200,000 acres) and property were confiscated, and a very little portion of the land was returned; the bulk was sold by the Government to the English, and up to the present day no compensation has been made. For the property destroyed the Court ordered compensation to be made; but the Government refused to comply.

The question of the lands thus seized was laid before the Committee of Maori Affairs of the House of Parliament in the year 1879, and again in the years 1880 and 1881, and the unanimous reply was made that the Government should specially appoint a Commission to investigate that seizure; but the Government refused to accede to this proposal.

On the seizure of the lands at Taranaki in the year 1863, a law was made that seven years were to be allowed for the Government to place settlers on the land, but failing to do so within that time, that the land should revert to the Maoris. The year 1870 arrived, and the Government had failed to settle the land, and the land was returned by the Native Minister, Donald M'Lean, who said that the Government should purchase the land at 5s. or 7s. per acre; but the Government did not purchase it.

In the year 1879 the Government began to seize the land without any pretext, arrested Te Whiti and party in their homes, destroyed their houses, rooted up their crops, and removed their goods, surveyed the land, put it into the market, and it was bought by the English, and very small portions were returned to the Natives. For twelve months Te Whiti and party were imprisoned and were never tried; they were then released, but are still under some restraining law of the Government.

When the lands in the South Island were bought by a Commission from the Queen the Commission stipulated that, on the Maoris consenting to the conditions, the villages, the fisheries, and one acre in every ten should be reserved to the Maoris, and to this the Maoris agreed; but on the completion of the sale the conditions were and have been disallowed down to the present time. A Commission was instituted in the year 1879; but the Government was not pleased to give effect to its awards.

Respecting the land at Kawhia. Before the establishment of the Government some Europeans resided at Kawhia; the Maoris allowed their residence for the purpose of trade, and rent was paid to the Natives by these Europeans; the Maoris in ignorance signed their names, and, as they paid for the goods received, were unaware that their names were obtained for a purpose. On arrival of fresh Europeans the lands were sold to the new arrivals, and these demanded a Crown grant from the Government, which was granted, though the Maoris were kept in ignorance of the transaction: and thus the Government dealt with the ground and ultimately bought it for themselves, and not until it was being surveyed were the Maoris aware that their land was alienated. Nor did the Government enquire of the Maoris whether the claims of the Europeans were just, and the Maoris condemned the transaction.

The Government submitted a Bill to Parliament to authorise them to put the land into the market, and the Bill was passed by the Parliament, the Maori members dissenting, and submitting a letter to the Governor, asking him to withhold his consent to the Bill, and the letter was forwarded to the Queen. In the year 1883 the land was thrown into the market by the Government, and the Kawhia River was buoyed; the Maoris then gathered together to prevent this, and Tawhiao[198] said to the Government, through the Native Minister, Mr. Bryce, "Let the staking of the river be done by him." But Mr. Bryce refused, and all the land was surveyed by the Government, and soldiers were placed on the land of the King, and works were pushed forward on the King's land, and the Government said that they, acting with Rewi and party, should decide the boundary of the King's land, to which Rewi and party agreed. When that was settled the Government commenced operations, not confining themselves to what was agreed upon, at which Rewi severed himself from any further connection with the operations of the Government, when he saw that the King party suffered loss; and this is an example of the conduct of the Government in all their transactions in Maori matters.

The Native Land Court was instituted in the year 1866 by the Government, and that measure for dealing with Maori lands was adopted in order to destroy the rights of the Maoris over their own land, rights secured to them by the Queen in the Treaty of Waitangi.

A fresh rule was thus established, by which the Court had full powers, its authority was entirely in European hands, and the Maoris were denied all authority. It was established that ten persons were to be allowed claims over any section of ground, the majority were to rest satisfied with no land to live on, and the lands were ultimately alienated by purchase. Another rule was set up by the Court, that if the claimants failed to present themselves to the Court the land should be handed over to others, and thus the lands were sold, including the lands, the homesteads, and the plantations, and the real owners of the land were left destitute. When the Maori race asked that they might be allowed to deal with their own lands by means of their own committees, the Government declined. In cases where Europeans purchased land from Maoris who received money for lands not theirs, the purchase thus made was established to the purchasers. Assessors were, indeed, appointed for the Court, but they had no power to say anything with regard to the lands dealt with by the Court. Te Wheoro was the first Assessor thus summoned in the year 1866; but when he saw these faults he left it in the year 1872.

The rights of the chiefs over their own lands were disallowed by the Government, and the positions of the chiefs, in accordance with their Maori customs, was swept away; for the chiefs had the power to secure the land for themselves and their tribes, lest the land and the persons should be lost (by other tribes seizing it) and their rights were reduced to an equality with ordinary persons, and their words were allowed no weight in retaining their land or in directing the affairs of their own tribes: but the Government gave the rights of ruling to all kinds of persons, and the ruling of these persons, possessing no tribal rights in the eyes of the race itself, was authorised, the Government merely regarding their own appointments in respect to these lands; and thus the Government were able to set aside and ignore the chiefs.

Maori Assessors were appointed by the Government to rule their own Maori race; only they had no powers. All powers of establishing and directing were retained by the Government, and even this is now being set aside.

Maori representatives were established by the Government, but a prohibitive rule was made by which the number of members were limited to four, and, though the Maoris demanded a representation proportionate to their numbers, this has been refused by the Government up to the present time; and these members have only nominal power and are unable to redress the Maori wrongs, and yet the Europeans have only an equal status with the Maoris. The commission charged by the Government on the monies paid for Maori lands, whether sold or leased, exceeds 25 per cent.

The payments arising from gold-bearing lands—i.e. 10s. per miner's right, and duties on goods—are taken by the Government, and none are returned to the Maori race, nor are the Maoris allowed any voice in directing these taxes; all are taken by the Government for the benefit of the Europeans, and the Maoris are left out of all consideration; and the result of all this is that the Government have taken the lands, the persons, and the rights of the Maori; the Maoris still lay claim to their rights, and this has been a cause of trouble, and troubles have also come on other Europeans, as happened at Marunui and other places throughout the whole Island, all from these acts of the Government. A Commission sat to investigate these wrongs at Napier. Te Wheoro, another Maori, and two Europeans sat, but the Europeans and the Maoris failed to agree, no decision was arrived at, and the lands were lost, and the Maoris, frightened at such dealings, retired to a remnant of the land of their ancestors in the King Country, and yet they are being even now pursued.

Te Wheoro rose in the Parliament of 1880, and, addressing the Government, asked them to give to the Maoris the office of Minister of Maori Affairs, then filled by Mr. Bryce, inasmuch as it was a post for the Maoris, and yet Europeans alone filled the office, though Maori names were mentioned for the office; and this is a wrong done to the Maoris, inasmuch as the Queen had given them rights. Mr. Bryce replied that the office should never belong to the Maoris.

Therefore we and our race have determined, and to us, the representatives of the tribes of New Zealand, has been assigned the work of crossing the ocean and of bringing our wrongs to the Queen and people of England, in whose hands lay the words of life and death, that they should send and give to the Maori race laws whereby they may live, like as our friends the Europeans who sent and asked to have a Parliament of their own, and which was agreed to by the Queen; the Maoris remaining in ignorance that their friends (the Europeans) had asked for a Parliament subsequent to the Treaty of Waitangi.

Therefore we pray for our Maori race that our Queen may cherish us, that she may accede to this our prayer, and grant to us, her Maori race, these humble requests. And firstly, that you will resolutely consent to grant a Government to your Maori subjects, to those who are living on their own lands or those of their ancestors, and within the limits of Maori territory, that they may have power to make laws regarding their own lands and race, lest they perish by the ills which have come upon them; that they may be empowered so to direct themselves and their own lands lest they be altogether destroyed by the practices of the Government, unknown and not evident to the Maoris; and that also the Maoris possessing lands contiguous to the Europeans should have those lands brought under the direction of the said Maori Government, for there are many tribes who thus own land, and which they will not long hold unless thus brought under Maori Government; and these Maoris are those who are suffering most at the present time, and they will be unable to save themselves unless some such means are taken for their preservation.

Secondly, that the Queen and her Government consent to the appointment of a Maori Commissioner, appointed by the Queen, one of the Maori race, one adhering to the Queen, an upright man, who shall act as mediator between the Maori and European races in matters touching the leasing and selling of the lands of your Maori subjects, who shall investigate the laws made by the Maori Government, make them feasible, and to write his opinion to your Governor and to you also for your confirmation, lest the Maori legislation be at variance with that of the Government, and lest the Maori should fail to carry out the laws of the Government respecting them.

Thirdly, that the greater portion of the taxes levied on your Maori subjects be returned to them, to enable them to carry on their Government, granted by you to your Maori subjects, in those parts which are Maori territory.

Fourthly, that the European Judges in the Native Land Court be superseded, and that your Maori race be then permitted to direct their own affairs in that Court; that they may be empowered to appoint their own Judges over their own lands, lest they be all lost by the present doings of the Court; that they may be able to deal with these lands in accordance with their own customs, apportioning to each tribe their share, and, having made all ready for leasing or selling, to submit all rulings to the Commissioner appointed by you, that he may look into the whole affair and see that no injurious effects come upon the Maori, and then he is to submit all to your Governor for confirmation.

Fifthly, that the lands wrongly obtained by the Government be returned to us. That all may be in accordance with the concessions made in the Waitangi Treaty and all other contracts made with your Maori subjects. That the Queen and her Government also appoint some person from England—a person independent of the Government of New Zealand—who shall carefully investigate those wrongs, and if he finds them in accordance with what we have now presented before you, that then he should decide whether the lands of your wronged subjects be returned or a compensation be made for part of it.

We, your Maori race, confidently rely on the Treaty of Waitangi, on its provisions and force, and we will be led by those provisions in these matters for which we have now swum the ocean of Kiwa, and we pray in the presence of the Queen that she will confirm her words given in that treaty, that it may not be trampled upon by the Government of New Zealand in anything they may do to annul that treaty.

Let the Queen live! Here we conclude. May God preserve you!

• Tawhiao,
• Wiremu te Wheoro,
• Patara te Tuhi,
• Topia Turoa,
• Hori Ropihana.

I hereby certify that the above is a true translation of the petition, made by me this 15th day of July 1884.

Fred H. Spencer, Clerk in Holy Orders.

Sir W. F. D. Jervois to the Right Hon. the Earl of Derby

Government House, Wellington, March 28, 1885.

My Lord—With reference to Your Lordship's Despatch, No. 46, dated the 9th August last, concerning a memorial from Maori chiefs, I have the honour to transmit herewith a copy of a memorandum from my Ministers. I also enclose copies of the Acts of the Colonial Parliament referred to therein.

I regret that I have been unable to send Your Lordship an earlier reply. The delay, however, has been caused by the fact that the Native Minister desired to visit the Maori districts before my Government furnished me with a memorandum on the subject. Full reports of the several meetings held by him with the Natives will be forwarded by the next mail.

I beg to refer Your Lordship to my Despatch, No. 9, dated the 1st March 1884, in which I have stated my own views with regard to the position of the Native race in this colony.—I have, etc.

Wm. F. Drummond Jervois. The Right Hon. the Earl of Derby.

MEMORANDUM FOR HIS EXCELLENCY

Ministers present their respectful compliments to the Governor, and beg to inform His Excellency that they have considered the memorial from Maori chiefs referred to in the despatch from Lord Derby, No. 46, of 9th August 1884.

Ministers are of opinion that they would least embarrass Her Majesty's Government by referring only to the period since 1865, when Her Majesty's troops were removed, when for the first time the colony was left to manage the Natives without interference by the representatives of Her Majesty in the colony. It is quite certain that since that period there has been no infraction of the Treaty of Waitangi. As it is clear that if there was an infraction previously Her Majesty's Government and Imperial funds would be liable for the same, Ministers deem it more respectful not to express an opinion on the subject, but to leave Her Majesty's Advisers in Great Britain to arrive at their own conclusions.

As to the provisions of section 71 of the Constitution Act (15 and 16 Vict. cap. 72), Ministers would remark that it appears from the very terms of the section that the Imperial Parliament contemplated that that section should only be used for a short time and under the then special circumstances of the colony. The words used in the section are, "It may be expedient," "Should for the present be maintained." So far as allowing the laws, customs, and usages of the Natives in all their relations to and dealings with each other to be maintained, Ministers would point out that this has been the policy of all the Native Land Acts. The Courts that have to deal with Native land—and it is the land that to the Natives seems the most important—decide according to Native customs or usages (vide "Native Land Courts Act, 1880," section 24; see also sections 5 and 6 of "The Native Lands Frauds Prevention Act, 1881," and section 6 of "The Native Land Laws Amendment Act, 1883").

Regarding the proclamation of Native districts the County of Waipa is practically a Native district, and if the Natives desired such a form of local government as the Counties Act affords, there would be no difficulty in granting their request by the Colonial Parliament. What, however, the petitioners desire is really the setting-up of a Parliament in certain parts of the North Island which would not be under the control of the General Assembly of New Zealand. Seeing that in the Legislative Council and the House of Representatives the Natives are represented by able chiefs, and that they have practically no local affairs to look after that cannot be done by their Committees—local bodies recognised by the Government—Ministers do not deem it necessary to point out the unreasonableness and absurdity of such a request.

Ministers have not deemed it necessary to go seriatim through the allegations of the petition and show their unsubstantiality. A former Premier, Sir Frederick Whitaker, specially dealt with a petition very similar to the one now under consideration (see memorandum, 12th December 1882, addressed to His Excellency the Governor, in Appendix to the Journals of the House of Representatives, A-6, page 5); and a former Native Minister, Mr. Bryce, wrote a memorandum referring to the alleged ill-treatment of the Maoris (see memorandum for His Excellency, 11th January 1884, A-1, page 11, in Appendix, vol. i., 1884). The despatch of Your Excellency, No. 9, of the 1st March 1884, forwarding the memorandum of Mr. Bryce, also combated the statements of the Maori chiefs who had petitioned.

Ministers do not consider that there is any allegation in this petition that has not been before the Imperial Government, replied to by the colony, and dealt with before.

Robert Stout. Wellington, March 12, 1885.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street, June 23, 1885.

Sir—I have the honour to acknowledge the receipt of your Despatch, No. 39, of the 28th of March, transmitting a memorandum from your Ministers in reference to the memorial of the Maori chiefs, which was presented on the occasion of the interview which took place at this office on the 23rd July 1884.

I request that you will inform Tawhiao and the other chiefs who signed the memorial that, as stated in the letter to them of the 13th August last, the attention of the Government of New Zealand was called to the representations which it contains, and that the reply of your Advisers—a copy of which I request you to transmit to them at the same time—has been received and considered by Her Majesty's Government.

The questions to which the memorial relates have also been discussed in the House of Commons with many expressions of sympathy for the Maori race, and of belief that their interests and their customs would be guarded and respected by the Government of New Zealand. The feeling, at the same time, appeared to be general that while the Government of the Queen in this country has no longer its former power and responsibility in regard to the internal affairs of New Zealand, it should use its good offices with the Colonial Government with the view of obtaining for the Natives all the consideration which can be given to them.

I trust that all who sympathise with and wish well to the Maoris will agree that it is most important for them to understand clearly that under the present Constitution of New Zealand the government of all Her Majesty's subjects in the islands is controlled by Ministers responsible to the General Assembly, in which the Natives are efficiently represented by persons of their own race, and that it is no longer possible to advise the Queen to interfere actively in the administration of Native affairs any more than in connection with other questions of internal government. I observe, however, with satisfaction that it is in contemplation to increase the number of the Native representatives.

Although, therefore, Her Majesty's Government cannot undertake to give you specific instructions as to the applicability at the present time of any particular stipulations of a treaty which it no longer rests with them to carry into effect, they are confident—as I request that you will intimate to your Ministers—that the Government of New Zealand will not fail to protect and to promote the welfare of the Natives by a just administration of the law, and by a generous consideration of all their reasonable representations. I cannot doubt that means will be found of maintaining to a sufficient extent the rights and institutions of the Maoris without injury to those other great interests which have grown up in the land, and of securing to them a fair share of that prosperity which has of necessity affected in many ways the conditions of their existence.—I have, etc.,

Derby. Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

Sir W. F. D. Jervois to Tawhiao

Government House, Wellington, August 27, 1885.

To Tawhiao.

The Petition which was signed by you, Major Te Wheoro, Patara te Tuhi, Topia Turoa, and Hori Ropihana, and presented to the Secretary of State when you were in England was forwarded by him to me, accompanied by a letter asking for any statements which the Government of New Zealand might desire to make respecting the matter. I wrote back to the Secretary of State, and enclosed a memorandum from the Government of New Zealand. The Secretary of State has again written to me, and requested me to send to you copies of these letters. I therefore enclose translations.

You will see from the last letter of the Secretary of State that he says that the Government of all Her Majesty's subjects in New Zealand, Maori as well as European, is controlled by Ministers responsible to the Parliament at Wellington, in which there are Maori representatives, and that the Government in London cannot interfere in the internal affairs of the colony.—From your Friend,

Wm. F. Drummond Jervois.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street, September 11, 1884.

Sir—I have the honour to submit to you a copy of a letter addressed to me by Tawhiao, the Maori King, on his departure for New Zealand after his recent visit to this country.

You will be so good as to inform Tawhiao that I duly received and that I appreciate his friendly farewell salutations.—I have, etc.,

Derby. Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

Tawhiao to the Right Hon. the Earl of Derby

Steamer "Potosi," August 20, 1884.

Friend—Salutations! Abide there with your friends, your fellow-nobles, your race, your land: I am returning to my people under the blessing of God.—From

Tawhiao. Lord Derby.

The Right Hon. the Earl of Derby to Sir W. F. D. Jervois

Downing Street, February 3, 1885.

Sir—I have the honour to inform you that I have received from the chief Hori Ropiha a letter dated the 3rd December, expressing the satisfaction of his tribe—the Ngatikahungunu—at the principles laid down on the occasion of the interview between the chiefs and myself at this office, more especially in regard to uniformity of legislation.

I request that you will cause Hori Ropiha to be informed that his statements have given pleasure, and that I do not doubt that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government to which Her Majesty has given over the whole question.—I have, etc.,

Derby. Governor Sir W. F. D. Jervois, G.C.M.G., C.B., etc.

The Under-Secretary, Native Department, to Hori Ropiha

Wellington, April 27, 1885.

To Hori Ropiha.

Greeting!—Lord Derby has written a despatch to the Governor of New Zealand acknowledging the receipt of your letter expressing the satisfaction of Ngatikahungunu at the principles laid down by you and Lord Derby in England. Lord Derby also says in his despatch that your statements have given pleasure, and he feels that the Government of New Zealand will deal fairly with the most important matters affecting the Maoris which Her Majesty has given to this Government to administer. Sufficient.—From

T. W. Lewis

Hori Ropiha to the Under-Secretary, Native Department

Waipawa, July 8, 1885.

Friend—Greeting! Greeting to you, and all the honourable members of the Parliament of the colony!

You have written to inform me of the receipt by the Government of New Zealand of a despatch from Lord Derby, in which he acknowledges the receipt of the letter expressing the satisfaction of the Ngatikahungunu at the principles laid down by us and Lord Derby in England.

Friend, I did send such a letter to Lord Derby, and the information contained in Lord Derby's despatch to you is correct—namely, that he does not doubt that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government of New Zealand, to which Her Majesty has given over the whole question.

Friend, I am greatly pleased at the receipt of your letter. I was absent at Mohaka, the Wairoa, and the Mahia, where I went to make known the principles laid down by us and Lord Derby, in order that my Maori tribes might hear my report of my visit to England. On my return from England I addressed the Maoris, and the people of my district were greatly pleased with what I told them. It is true that they have joined the Blue Ribbon Army,[199] and keep it faithfully.

Friend, continue to carry out a policy that will benefit the Maoris in accordance with what Lord Derby said—namely, that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government of New Zealand—and justify Her Majesty's action in giving over the whole question to be dealt fairly with by the Government.

I know what course of policy would be beneficial to the Maori people and establish friendly relations. Sufficient.—From your loving Friend,

Hori Ropiha. To Mr. Lewis.

Tawhiao to Sir W. F. D. Jervois
(Translation)

Whatiwhatihoe, September 21, 1885.

Friend—Greeting. I have received your letter of the 27th of August, with the copies of communications from yourself, your Ministers, and Her Majesty's Government relative to the subject-matter of the petition from the Maori people that I and my fellow Native chiefs took to lay before Her Majesty's Government and the people of England. In your letter you inform us of one only of the words of Her Majesty's Government—namely, that the government of all Her Majesty's subjects in New Zealand is controlled by Ministers responsible to the Parliament. Your so informing us is well. But you did not also inform us of another important word of the Government of England with reference to the Maori people—namely, that you should intimate to your Government that they should protect and promote the welfare of the Natives by a generous consideration of all their reasonable representations. Well, we see that these directions from the Government of England are no mere random words, but have a bearing upon the petition, which petition your Ministers said had no significance, and that England would not interfere. Your communications and those of the Government of England have been circulated among the Maori people of this Island.

However, with reference to the statement made by your Ministers that they do not consider that there is any allegation in this petition that they have not answered before, I and my fellow Native chiefs would say, Where are the replies taking exception to those petitions? And why are they not quoted in connection with this petition for the consideration of the Native people? And who is it that can say that the complaints raised in those petitions are similar to those made in this?

And, further, with reference to the statement that since 1865 England ceased to interfere in the management of affairs in New Zealand, and left them to be managed by the Government of New Zealand, it may be so. But the Maori people are not aware of the reasons that led their Pakeha friends to apply to have the sole management of affairs in New Zealand; and the assent thereto of the Queen's Government was given without considering the Maori people, or making any inquiries of them. Because the right of governing and the occupation of the Island by Europeans dates from the Treaty of Waitangi; and it was left to the chiefs, the hapus of the Native people, and Her Majesty to carry out the provisions of the Treaty of Waitangi, which became a covenant on the descendants.

And, further, with reference to the statement made by your Ministers that "there has been no infraction of the Treaty of Waitangi," we would ask what portion of the Treaty of Waitangi, what hapus, or what chiefs placed the authority over the Native lands under the Native Land Court, or gave the Europeans the sole power to deal with Maori lands in that Court, as stated in the paragraph respecting the Native Land Court in that petition.

And, further, with reference to the statement respecting the presence of Native members in the Legislature, the status of those members was pointed out in the petition: Taking the basis of population, one Native member is returned for more than twenty thousand persons, whereas one European member is returned for every five thousand. When, indeed, have the applications of those members for increased representation been acceded to by that Parliament? When, indeed, have the applications of those members to have the grievances of the Native people redressed been acceded to by that Parliament? When, indeed, have the applications of those members asking that the Natives should have the power of administering their own lands been acceded to by that Parliament? Well, it is seen that the reason why the Government admitted Natives there (into Parliament) as members was merely in order that it could be said that Natives dealt with the wrongs now practised on the Maori people, and in order, too, that such wrongs should not be looked into, and finally to abolish those members.

And, further, with reference to the statement made by the Minister that Kawhia is a Native district: Well, if the Government really considered it to be such, why, then, did they assume to themselves the right to do certain acts in that district, such as establishing a military post on Native lands, which was a menace to the Maori people?

When, indeed, have the Government paid any heed to the application of Tawhiao and the people of that district desiring that Tawhiao should have the management of matters in that district?

Do you forward a copy of this letter to Her Majesty's Government. Sufficient.

King Tawhiao. His Excellency the Governor.

Sir W. F. D. Jervois to the Right Hon. Colonel Stanley

Christchurch, December 16, 1885.

Sir—I have the honour to state that I duly forwarded to Tawhiao, a copy of your Despatch No. 39, of the 23rd June last, concerning the Maori chiefs' memorial, presented by them to Her Majesty's Government whilst in England.

I have received from him in reply a letter, a translation of which, in accordance with the request contained in the last paragraph, I transmit herewith. I have, on the advice of my Ministers, informed him that there is nothing to add to the communications that have already been made.

It is the desire and practice of the Government of this colony to treat the Native population with the most perfect justice, and, as far as possible, in the same manner as the other subjects of Her Majesty in New Zealand. I submit that no good end can be served by prolonging this correspondence.—I have, etc.,

Wm. F. Drummond Jervois. The Right Hon. Colonel Stanley, M.P.

Sir W. F. D. Jervois to Tawhiao

Christchurch, December 16, 1885.

Sir—I have the honour to acknowledge the receipt of your letter of the 21st September last with reference to your petition to Her Majesty. I do not think there is anything to add to the communications that have already been made. I have, as you requested, forwarded a copy of your letter to Her Majesty's Government.—I have, etc.,

Wm. F. Drummond Jervois. To Tawhiao, etc.

Tawhiao to Sir W. F. D. Jervois

Whatiwhatihoe, December 22, 1885.

To the Governor of New Zealand.

Greeting!—I am not quite certain about the copies of the letters from your Government and Her Majesty's Government that you forwarded to me on the 27th day of August 1885, in Maori only. I am very desirous that you should send me copies of the same in English, which would be right. Sufficient.—From your friend,

King Tawhiao. The Governor, Wellington.

The Under-Secretary, Native Department, to Tawhiao

Wellington, January 29, 1886.

Friend Tawhiao—Greeting. His Excellency the Governor has forwarded to Mr. Ballance the letter you wrote to him on the 22nd December, in which you asked that copies in English of the despatches from Lord Derby, the Governor, and the Government of the colony might be supplied to you, and by direction of Mr. Ballance, I forward copies of those despatches by the mail.—From your friend,

T. W. Lewis. Tawhiao, Whatiwhatihoe, via Alexandra, Waikato.

The Right Hon. Colonel Stanley to Sir W. F. D. Jervois

Downing Street, February 2, 1886.

Sir—I have the honour to acknowledge the receipt of your Despatch No. 127, of the 16th December, forwarding a translation of a letter which you had received from Tawhiao in reply to one founded on my predecessor's Despatch No. 39, of the 23rd June, in connection with the memorial of the Maori chiefs. I request that your Government will cause Tawhiao to be informed that I have read his letter in accordance with his desire.—I have, etc.,

Fred Stanley. Governor Sir W. F. D. Jervois, G.C.M.G., G.C.B., etc.

The Hon. the Native Minister to Tawhiao
(Translation)

Wellington, May 6, 1886.

Friend Tawhiao—I have been requested by His Excellency the Governor to transmit for your information copy of a despatch he has received from the Right Hon. the Secretary of State for the Colonies in reference to a letter from yourself. Enough.—From your loving friend,

John Ballance. Enclosure.—Despatch No. 7, of the 2nd February 1886.

Copy of Resolutions

The Resolutions herein written were confirmed by the chiefs and hapus assembled at Whatiwhatihoe on this 4th day of April, in the year 1886.

1. That the Treaty of Waitangi shall continue in force, by which the authority (mana) of the chiefs of the Maori people was assured to them, and which also confirms and guarantees Maori people the full, exclusive, and undisturbed possession and control of their lands, and declares that the Maori people shall be maintained in their rights.

2. That the powers conferred by the Act of the year 1852 should be maintained—viz. that a council or councils should be set up, and invested with power and full authority, and that it shall be lawful for Her Majesty to authorise such councils.

3. That the Maori people of Ao-tea-roa (New Zealand) shall act together under the law above mentioned.

4. That the Maori committees, authorised by the laws above referred to, shall be zealous in the performance of their duties.

5. That no wrong proceedings or operations of the Government towards the Maori people shall be sanctioned.

6. That the Native Land Courts Act should be repealed, and that it be left to the Maoris themselves to adjudicate on their own lands.

7. That this runanga (council) shall persist in its efforts to have the directions given by the Government of the Queen to the Government of New Zealand carried out—viz. that the rights and interests of the Maori people shall be guarded and respected. (This resolution was unanimously carried by the runanga: "Although the Government of England has nothing to do with the affairs of New Zealand, still the Government of the Queen will instruct the Government of New Zealand to devise some measures whereby justice may be done to the Maori people and their interests promoted, and that the Governor should be questioned concerning these instructions from England.")

8. That the chiefs attending this meeting be deputed to put the question to the Governor.

9. That each tribe should subscribe money for the purchase of a press to print for circulation reports of what are done and said by the Maori people.

10. That power be given to each committee to deal with lands in its own district.

These are the Resolutions that were carried.

King Tawhiao's reply in reference to the Resolutions was: "I thank you for an assent to the resolutions. I thank you, every one of you, for your discussions upon those resolutions which have been formed by you in accordance with your own wishes. I have carefully watched your discussions. There was but one tendency of all your discussions, which corresponds exactly with the object I had in view in inviting you to this meeting. Be zealous in lifting up and in sustaining (measures for the benefit) of both these islands. Hearken ye! The views held by the English people in England are precisely the same as those held by the Maori people in New Zealand."

The Hon. the Native Minister to Tawhiao
(Translation)

Auckland, April 17, 1886.

Friend—I have the honour to enclose you the reply of the Governor to the resolutions presented by the deputation (sent by you) to His Excellency on the 9th instant. There is one point in the resolutions on which I desire to offer an explanation. In the translation of Lord Derby's despatch made in the Native Department in Wellington some of the terms are incorrectly rendered. A correct translation has been made and handed to Major Te Wheoro. The despatch itself is in your possession, and there can be no doubt of its meaning, which is fully explained in the memorandum of His Excellency.—From your friend,

J. Ballance. To Tawhiao.

Memorandum from Sir W. F. D. Jervois to the Hon. the Minister for Native Affairs

The enclosed replies to certain questions submitted to me in a memorandum from several Maori chiefs who waited upon me on the 9th instant with a view of laying before me resolutions passed at a Native meeting previously held at Whatiwhatihoe are transmitted to the Minister for Native Affairs for communication to the chiefs concerned.

In forwarding the paper to the chiefs, I request that you will inform them that I was greatly pleased at the loyal sentiments expressed by them at their interview with me towards Her Most Gracious Majesty the Queen, as well as the confidence they exhibited towards myself as her representative. I also beg that you will convey to Tawhiao, and all the chiefs concerned, how much I rejoice at the cordial feeling they exhibit towards the Government of New Zealand.

W. F. Drummond Jervois. Government House, Auckland, April 14, 1886.

Memorandum relating to Resolutions passed at a Native Meeting held at Whatiwhatihoe on the 4th April 1886.

Referring to the Resolutions in the order submitted in a paper laid before His Excellency the Governor by a deputation of Maori chiefs on the 9th April: 1. The Treaty of Waitangi vested the mana in Her Majesty the Queen, and secures to the Natives their land. That treaty, in its essential elements, has been faithfully kept by the colony. A modification was made in it by which the Natives obtained the right of selling their lands to persons outside the Government, whereas under the treaty the Government had the sole right of purchasing Native lands. This modification, the only one made in the treaty, was, however, introduced at the request of the Maoris themselves. The rights of the Maori people have been carefully preserved.

2. This appears to refer to section 71 of the Constitution Act, where reference is made to Native councils. It must be observed, however, that the section is not mandatory, as will be seen from the clause itself, and from such terms as, "it may be expedient," and "should for the present be maintained." Local self-government has been extended to the Native people in the form of Committees under the Act of 1883. These Committees have power to ascertain titles to Native lands, and to hear and decide civil cases by agreement, and, in fact, may be said to be Courts of Arbitration. Their usefulness is being proved, and a large majority of the Native people appreciate them and are using them. It has been found by experience, however, with regard to titles to land, that there is often great jealousy of the committees, and that the Natives prefer to have the land adjudicated on by the Land Courts. (This remark applies also to Resolution 6.) If any other form of Maori council than that which now exists is desired under the clause of the Constitution Act referred to, it can only be obtained by Act of Parliament of New Zealand.

No observations are necessary to Resolutions 3, 4, 5, 8, and 9.

7. This Resolution apparently refers to Lord Derby's despatch of the 23rd June 1885, but does not convey a correct impression of the terms of that document. No directions are contained in the despatch. Lord Derby expressly says that "under the present Constitution of New Zealand the government of all Her Majesty's subjects in the islands is controlled by Ministers responsible to the General Assembly, in which the Natives are efficiently represented by persons of their own race, and that it is no longer possible to advise the Queen to interfere actively in the administration of Native affairs, any more than in connection with other questions of internal government." The resolution states that there is an "instruction" contained in the despatch; but there is none. On the contrary, Lord Derby expressly recognises the right of the New Zealand Government to deal with the internal affairs of the colony without interference. The words of Lord Derby, where he refers to the Native people, are as follows: "It (the Imperial Government) should use its good offices with the Colonial Government with the view of obtaining for the Natives all the consideration which can be given to them." The particular request that Lord Derby makes, and it is only in the nature of a request, is "that the Government of New Zealand will not fail to protect and to promote the welfare of the Natives by a just administration of the law, and by a generous consideration of all their reasonable representations." He adds, "I cannot doubt that means will be found of maintaining to a sufficient extent the rights and institutions of the Maoris without injury to those other great interests which have grown up in the land, and of securing to them a fair share of that prosperity which has of necessity affected in many ways the conditions of their existence." The policy advocated by Lord Derby has been and is being carried out. A proof of this is to be found in the fact that an overwhelming majority of the Natives are satisfied with the administration of their affairs by the Government of New Zealand.

John Jervois, Private Secretary.

Signed by order of His Excellency the Governor. Government House, Auckland, 14th April 1886.

In the Court of Appeal of New Zealand.

Tamihana Korokai and others v. The Solicitor-General

• 1912.
• July 23, 24, 25.
• Oct. 7.
  
• C.A.
• Coram.
• Stout, C.-J.
• Williams, J.
• Edwards, J.
• Cooper, J.
• Chapman, J.
  
• Skerrett, K.C., Morison and Fell for the plaintiffs.
• Solicitor-General (Salmond) and Ostler for the defendant.

STOUT, C.-J.—This is a special case stated pursuant to Rule 245 of our Code of Civil Procedure. Neither party, however, asks that all the questions framed in the case should be answered. Indeed both ask that some of the questions should not be answered. The point in dispute between the parties is a narrow one. The plaintiff contends that he has a statutory right to go to the Native Land Court claiming under the Native Land Act a freehold title. The Solicitor-General contends that if he, as Solicitor-General, says the land, that is the bed of Lake Rotorua, is Crown land that concludes the matter, and the Native Land Court cannot proceed to make any inquiries as to whether the land is native customary land. That is the matter in contention, and it appears to me that it is the only question that this Court has at present to decide.

It may be necessary to refer very shortly as to how the question has arisen. In 1835 there were many English people settled in the most northerly part of New Zealand. English Church Missionaries had been there for some years, they landed first in 1814; and there were traders and whalers and others that had made New Zealand their home. One called Charles Baron de Thierry, in Marquesas, claimed that he was sovereign chief of New Zealand. He so informed Mr. James Busby, who had been appointed British Resident in New Zealand, and Mr. Busby thereupon took steps to deny any such sovereignty. He and other English residents saw the Native chiefs and they formed what was called a Confederation. The thirty-five head chiefs or heads of tribes in the most northern parts of New Zealand, that is all the country lying north of the Firth of Thames, joined in a declaration that New Zealand was an independent state under the name of the "United Tribes of New Zealand." Mr. Busby sent a copy of this declaration to the Under-Secretary of State in London, and Lord Glenelg, the Secretary of State for the Colonies, wrote to the Governor of New South Wales regarding the declaration. The Governor was directed to inform the chiefs "With reference to the desire which the chiefs have expressed on this occasion to maintain a good understanding with His Majesty's subjects, it will be proper that they should be assured in His Majesty's name that he will not fail to avail himself of every opportunity of showing his goodwill and of affording to those chiefs such support and protection as may be consistent with a due regard to the just rights of others, and to the interests of His Majesty's subjects."

Meantime the eligibility of New Zealand as a colony was being discussed both in New South Wales and in England, and ultimately in 1840 Captain Hobson, R.N., was despatched to New Zealand with two commissions, one as British Consul, and the other as Lieutenant-Governor. He reached the Bay of Islands on the 29th of January 1840, and on the 5th and 6th of February the Treaty of Waitangi was signed by many chiefs, then assembled at Waitangi in the Bay of Islands. The treaty states, inter alia: "Her Majesty, therefore, being desirous to establish a settled form of civil government with a view to avert the evil consequences which must result from the absence of the necessary laws and institutions alike to the native population and to her subjects, has been graciously pleased to empower and authorise me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul and Lieutenant-Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent chiefs of New Zealand to concur in the following articles and conditions."

Then follow three articles. The first article deals with the cession. It is as follows: "The chiefs of the Confederation of the United Tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of sovereignty which the said confederation or individual chiefs respectively exercise or possess or may be supposed to exercise or possess over their respective territories as the sole sovereigns thereof."

The second and the third articles are as follows: "Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession: but the chiefs of the united tribes and the individual chiefs yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf." The third is as follows: "(3) In consideration thereof, Her Majesty the Queen of England extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects."

Copies of the treaty were taken to various parts of both islands, and the chiefs throughout New Zealand signed it, and to the present day the treaty is regarded as their Magna Charta. The Lieutenant-Governor on the 21st May 1840 issued a proclamation, proclaiming and declaring that after the date of the treaty the full sovereignty of the North Island of New Zealand vested in Her Majesty, Queen Victoria, her heirs and successors for ever.

A further proclamation was issued on the same day proclaiming and declaring that all the Islands of New Zealand vested in Her Majesty, that is, including all country between 34° 30´ north to 47° 10´ south latitude and between 166° 5´ to 179° east longitude. A mistake was made in this proclamation in that it proclaimed from 34° 30´ north instead of as was intended 34° 30´ south. The ground of the proclamation over the South Island was that of discovery. Since then it has been recognised that the lands in the islands not sold by the natives belonged to the natives. All the old authorities are agreed that for every part of land there was a native owner. Two authorities may be cited. Bishop Selwyn said as follows: "Three points then seem to be clear on this subject: (1) That there was originally a distinct owner for every habitable spot in the Northern Island: (2) That these claims have been complicated by the obvious causes of inheritance and marriage without forms of conveyance or bequest: (3) That the rights of ownership whether in one or many joint proprietors were not alienable without the consent of the tribe."

The late Sir William Martin, formerly Chief-Justice of New Zealand, said: "So far as yet appears the whole surface of the islands, or as much of it as is of any value to man, has been appropriated by the natives, and, with the exception of the part they have sold, is held by them as property. Nowhere was any piece of land discovered or heard of (by the commissioners) which was not owned by some person or set of persons.... There might be several conflicting claimants of the same land: but however the natives might be divided amongst themselves as to the validity of any one of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants. In this Northern Island at least it may now be regarded as absolutely certain that, with the exception of lands already purchased from the Natives, there is not an acre of land available for purposes of colonisation, but has an owner amongst the Natives according to their own customs."

The Governor and the Legislature of New Zealand accepted this position, and numerous ordinances and acts of Parliament have been passed to enable the Maoris to transmute their customary title into freehold. The position all along assumed has been that the lands are vested in the Crown, and until the Crown issues a freehold title the customary titles cannot be recognised; but that the Crown will give to all who prove that the land was theirs a freehold title. The Crown has not assumed that land could be taken or kept by the Crown from the Natives, unless the natives ceded their rights to the Crown. Thousands of purchases in both islands have been made by the Crown, and thousands of deeds of cession are in existence. The reason why the Crown did not recognise any title in the land till a grant from the Crown had issued is dealt with in the classic judgment of the late Mr. Justice H. S. Chapman, delivered in 1847 in the case of Reg. v. Symonds, and in the judgment of the then Chief-Justice Sir William Martin, who agreed with the judgment of Mr. Justice Chapman. After their judgments, the Imperial Parliament in the New Zealand Constitution Act (15 and 16 Vict. c. 72, sec. 73) recognised the native title. Section 73 of that Act is as follows: "It shall not be lawful for any person other than Her Majesty, her heirs and successors, to purchase or in any wise acquire or accept from the aboriginal Natives land of or belonging to, or used or occupied by them in common as tribes or communities, or to accept any release or extinguishment of the rights of such aboriginal Natives in any such land as aforesaid: and no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity or for any term or period, either absolutely or conditionally, and either in property or by way of lease or occupancy, and no such release or extinguishment as aforesaid, shall be of any validity or effect, unless the same be made to, or entered into with and accepted by Her Majesty, her heirs or successors. Provided always that it shall be lawful for Her Majesty, her heirs and successors, by instructions under the signet and royal sign manual, or signified through one of Her Majesty's Principal Secretaries of State to delegate her powers of accepting such conveyances or agreements, releases, or relinquishments, to the Governor of New Zealand, or the superintendent of any province within the limits of such colony, and to prescribe or regulate the terms of such conveyances or agreements, releases or extinguishments shall be accepted."

That the Crown in New Zealand recognised that it could not treat the Native land—that is, the land over which the Natives had not given up their rights of cession—as Crown in the fullest sense is plain from various things done: (1) In 1862 the first Act to provide for the ascertainment of the ownership of Native lands, and for granting certificates of title therein, and for regulating the disposal of Native lands was passed. The preamble is as follows: "Whereas by the Treaty of Waitangi entered into by and between Her Majesty and the chiefs of New Zealand, it was among other things declared that Her Majesty confirmed and guaranteed to the chiefs and tribes of New Zealand and the respective families and individuals thereof the full, exclusive, and undisturbed possession of their lands and estates, which they collectively or individually held so long as it should be their desire to retain the same: And it was further declared that the chiefs yielded to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof might be disposed to alienate: And whereas it would greatly promote the peaceful settlement of the colony and the advancement and the civilisation of the Natives if their rights to land were ascertained, defined, and declared, and if the ownership of such lands when so ascertained, defined, and declared were assimilated as nearly as possible to the ownership of land according to British law: And whereas with a view to the foregoing objects, Her Majesty may be pleased to waive in favour of the Natives so much of the said Treaty of Waitangi as reserves to Her Majesty the right of pre-emption of their lands, and to establish Courts and to make other provision for ascertaining and defining the rights of the Natives to their lands, and for otherwise giving effect to the provisions of the Act: And it is expedient that the General Assembly of New Zealand should facilitate the said objects by enacting such provisions as are hereinafter contained."

(2) When the natives committed rebellion or were guilty of insurrection, a special Act was passed allowing the Governor in Council to take their lands. See inter alia the New Zealand Settlements Act, 1863. A few of the sections may be cited: "2. Whenever the Governor in Council shall be satisfied that any Native tribe or section of a tribe or any considerable number thereof has since the first day of January 1863 been engaged in rebellion against Her Majesty's authority, it shall be lawful for the Governor in Council to declare that the district within which any land being the property or being in the possession of such tribe or section or considerable number thereof shall be situate, shall be a district within the provisions of this Act, and the boundaries of such district in like manner to define and vary as he shall think fit."

"3. It shall be lawful for the Governor in Council from time to time to set apart within any such district eligible sites for settlements for colonisation, and the boundaries of such settlements to define and vary."

"4. For the purposes of such settlements the Governor in Council may from time to time reserve or take any land within such district, and such land shall be deemed to be Crown land, freed and discharged from all title interest, or claim of any person whomsoever as soon as the Governor in Council shall have declared that such land is required for the purposes of this Act, and is subject to the provisions thereof."

Section 5 provided for compensation to persons whose land has been taken, provided that they had not been in rebellion.

(3) Before Native land was treated as Crown land, open for sale and settlement, proclamations were generally made so declaring the land open. See, for example, section 6 of the Immigration and Public Works Act, 1873, and section 247 of the Land Act, 1885.

It is not necessary to point out that if the Crown in New Zealand had not conserved the Native rights and carried out the treaty a gross wrong would have been perpetrated. Since the recognition of the Native rights so often made, there may have been interference by legislation with Native land, both before and after the ascertainment of title. If, however, there were such interferences, they have been based on the theory of eminent domain. There have been statutes passed providing how Native lands may be leased, but a similar kind of interference has been witnessed in the United Kingdom in the case of the Irish Land Acts and the Scottish Crofters' Statutes. Such interferences did not destroy the title of Natives. Native lands and freehold lands belonging to persons of the white race have also been taken under such a theory when it appeared it was for the interest of the State to do so. In such cases compensation has been awarded. To interfere with Native lands, merely because they are Native lands, and without compensation, would of course be such an act of spoliation and tyranny that this Court ought not to assume it to be possible in any civilised community.

The decision of Wi Parata v. Bishop of Wellington, 3 J.R., N.S., S.C. 72, does not derogate from that position. It only emphasised the decision in Reg. v. Symonds, that the Supreme Court could take no cognisance of treaty rights not embodied in a statute, and that Native Customary Title was a kind of tenure that the Court could not deal with. In the case of Tamaki v. Baker (1901), A.C. 561, the Judicial Committee of the Privy Council recognised, however, that the Natives had rights under our statute law to their customary lands.

The Native Land Act, 1909, has various sections dealing with the customary land of the Maoris (sections 84, 85, 86, and 87). What was the need of such sections if a declaration by a law officer of the Crown was all that was necessary to say that the land claimed as Customary Native Land was Crown Land? Section 88 is significant in this connection. It states "(1) for the purpose of recovering possession of customary land from any person in wrongful occupation thereof, and for the purpose of preventing any trespass or other injury thereto, or of recovering damages for any such trespass or injury, all such land shall be deemed to be Crown Lands within the meaning of the Land Act, 1908. (2) No action or other proceeding, other than a proceeding by or on behalf of the Crown under the last preceding subsection, shall be brought in any Court by any person for the recovery of the possession of customary land, or for damages or an injunction in respect of any trespass, or injury to such land." Sections 90 and 91 show that the customary titles are recognised: section 90 reads: "The Native Land Court shall have exclusive jurisdiction to investigate the title to customary land, and to determine the relative interests of the owners thereof." Section 91 is as follows: "Every title to and interest in customary land shall be determined according to the ancient custom and usage of the Maori people, so far as the same can be ascertained." Section 92 shows the jurisdiction of the Native Land Court. Formerly there was something more required than an order of a Native Land Court to make an effective title. At one time His Excellency the Governor had to sign a Crown grant and at another time a certificate of title.

I am of opinion that the Native Land Act recognises that the Natives have a right to their customary titles. There are in my opinion only three things that can prevent the Native Land Court entering on an enquiry as to such customary title.

(1) A proclamation of the Governor under a statute, such as has been provided in many Acts, and is so provided in section 85 of the Native Land Act, 1909.

(2) A prohibition by the Governor under section 100 of the Native Land Act, 1909.

(3) Proof that the land has been ceded by the true owners or that a Crown grant has been issued.

I know of no statutory authority that the Attorney-General as Attorney-General or the Solicitor-General as Solicitor-General has to declare that the land is Crown land. The Attorney-General and the Solicitor-General are both high officers of State. They are legal officers, and they can appear as solicitors or counsel for the Crown, but there their functions and powers end. Their statement as to what is Crown property unless made in accordance with some statutory power, is of no avail. If in an action they put in a plea to that effect, it would have to be proved like any other pleading of a party to the action. The Solicitor-General has failed to cite any authority that the mere statement of the legal adviser of the Crown, or the Crown's Attorney or Solicitor-General, was to be taken as a true averment without proof.

What the customary title to the bed of Lake Rotorua may be must be considered and determined by the only Court in New Zealand that has jurisdiction to deal with Native titles—the Native Land Court. At common law there may be an ownership of the bed of navigable rivers or lakes that are non-tidal. See Kent's Commentaries, vol. iii. p. 427, note (d). The case of Mueller v. Taupiri Coal Mines, Ltd., 20 N.Z.L.R. 89, turned on the effect of a grant under the Land Acts.

I am of opinion that it is not necessary specifically to answer the questions put, but only to say that the plaintiff and his people have a right to go to the Native Land Court to have their title investigated, and that the Native Land Court can only be prevented from performing its statutory duty, first, under the Native Land Act, secondly, on proof in that Court that the lands are Crown Lands freed from the customary title of the Natives, or, thirdly that there is a Crown title to the bed of the lake.

WILLIAMS, J.—The contention of the Solicitor-General is that in all cases where land is claimed by natives to be held by them under their customs and usages, and they seek to have their titles ascertained by the Native Land Court, and a title in fee simple granted to them, the Solicitor-General, by virtue of the prerogative right of the Crown, and apart from any statutory authority, could at any time step in and prevent proceedings being taken or continued. The arguments in support of this contention are that when New Zealand was annexed to Great Britain all the land in New Zealand became vested in the Crown, by virtue of its prerogative; that the Treaty of Waitangi is binding only upon the honour of the Crown, and can be disregarded at the discretion of the Crown; and that, although there may be a statutory recognition of the Native title, there is no such statutory recognition as would operate as against the Crown. Even if these arguments were sound it by no means follows that the contention of the Solicitor-General can be supported.... There is nothing in the Governor's commission or in the Royal instructions which expressly authorises him to interfere on behalf of the Crown to prevent the exercise of rights given to natives by the statute law of the Dominion. Has he then, by virtue of his commission, an implied power so to interfere?... There is a special reason why the power now claimed should not be implied. The power now claimed is by an act of state to disregard rights given by statutes which have been passed to carry out treaty obligations binding upon the honour of the Crown. If the Crown has this power, it is exercised on the advice of the responsible Minister of the Crown. Whether it should be so exercised or not is a matter affecting the honour of the Crown, not merely as the Sovereign of this Dominion, but as the Sovereign of the British Empire. It was with the Sovereign of the British Empire that the Treaty of Waitangi was entered into. Whether Imperial obligations should or should not be observed is a matter of Imperial concern for the responsible advisers of the Crown in Great Britain to decide upon and not for the advisers of the Governor here, unless the power of deciding has been expressly delegated to the Governor. Even if the power had been so delegated the Court would properly require some evidence beyond the mere statement of the Attorney- or Solicitor-General that the authority of the Crown was being exercised.... I agree with the conclusion arrived at by His Honour, that rights given to natives by statute to have their customary titles determined can only be divested in the manner prescribed by statute. The rights given to natives by sections 90 to 93 inclusive of "The Native Land Act, 1909," to have a legal estate in fee simple in possession vested in the persons found to be entitled are rights expressly given against the Crown. If these sections do not bind the Crown they are meaningless and inoperative. The Crown is a party to the statute. It is difficult to see how, when rights which expressly affect pre-existing rights of the Crown are created by statute, the Crown upon the passing of the statute can disregard the rights so created, and exercise its pre-existing rights as if the statute had not been passed.

EDWARDS, J.—In support of his contention that the bed of the lake cannot be the subject of a Native title under Maori customs and usages, the Solicitor-General relies upon the inherent improbability that there was any intention, either by the Treaty of Waitangi or by the statutes relating to native lands, to recognise any such right. To hold that there is such a right would be, the Solicitor-General contends, to destroy the right of navigation in all non-tidal waters to the great detriment of the public. Such considerations might well have induced those responsible for the Treaty of Waitangi to have so framed that document as to preclude any claim by natives to the exclusive possession of land covered by navigable non-tidal waters. It may even be suggested that the words of the treaty, which guarantee to the Maoris "the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties," were intended to reserve to the natives merely the right to fish in non-tidal waters, without recognising in them any property in the land covered by such waters. It is quite possible—indeed not improbable—that there never was any Maori custom or usage which recognised any greater right in land covered by navigable non-tidal waters than this. That is a question which neither the Supreme Court nor this Court can determine. If there never was any such custom or usage prior to the Treaty of Waitangi, then the Crown will get the advantage of that when that question has been determined by the Native Land Court, or in the last resort by the Judicial Committee of the Privy Council. But if there was such a custom or usage, the treaty, so far as it is effective, is sufficient to preserve it. The treaty, like every other instrument, must be construed in accordance with the plain legal significance of the words used, and the Courts cannot speculate as to whether or not those words were used in another sense not apparent upon the face of the instrument, or necessarily to be inferred from the subject with reference to which they are used. A lake, in contemplation of the English law, is merely land covered by water, and will pass by the description of land. Bristow v. Cormican (3 A.C. 641); Johnston v. O'Neill (1911, A.C. 552). Whatever rights were conserved to the Maoris by the Treaty of Waitangi were fully recognised by "The Native Lands Act, 1862," which recited the treaty, and was enacted with the declared object of giving effect to it.... In my opinion it is clear that if the Crown desires to set up its title, as a bar to the investigation by the Native Land Court in its ordinary jurisdiction of claims by natives, it must either be prepared to prove its title, or it must be able to rely upon a proclamation in accordance with the terms of the 85th section of "The Native Land Act, 1909."

COOPER, J.—I have had the advantage of reading and considering the judgment of His Honour, the Chief Justice, and, upon substantially the same grounds as are expressed by His Honour in that judgment, I have arrived at the same conclusion.

I have very little to add.

"The Land Act, 1908," contains the statutory provisions regulating the administration of Crown lands in New Zealand. In respect of Native lands, section 2 brings within the category of Crown lands only those "Native lands which have been ceded to His Majesty by the Natives on behalf of His Majesty, or otherwise acquired in freehold from the Natives on behalf of His Majesty, or have become vested in His Majesty by right of his prerogative."

Customary lands owned by natives, which have not been ceded to His Majesty or acquired from the native owners on behalf of His Majesty, cannot in my opinion be said to be land vested in His Majesty by right of his prerogative. It is true that, technically, the legal estate is in His Majesty, but this legal estate is held subject to the right of the natives, recognised by the Crown to the possession and ownership of the customary lands, which they have not ceded to the King, and which His Majesty has not acquired from them.

Section 338 of the Act draws a clear distinction between Native lands and Crown lands. Under subsection (1) of that section, where the Governor is satisfied that Native lands have been acquired by the Crown, he shall by proclamation declare such lands to be Crown lands, and under subsection (2), when such lands have been so acquired, he may give effect to any stipulation in the instrument of sale or transfer to His Majesty for the reservation to the natives of any part of such lands, and may reserve or grant such portions in manner required by the natives.

Section 88 of "The Native Land Act, 1909," which has been referred to by His Honour also, recognises that these lands are not "Crown lands." They are only deemed to be Crown lands for the one purpose, namely, that if any person is in possession of or trespassing upon, or injuring the lands against the interest of the Native owners, then, for the purpose of protecting the Native owners the Crown may under the Land Act take proceedings against such wrongdoers. Even this provision is a guarded one, for subsection (3) of that section expressly provides that nothing in it contained shall take away or affect any jurisdiction conferred upon the Native Land Court.

CHAPMAN, J.—I agree with the judgments which have been read. It has been argued that the Treaty of Waitangi was an international treaty entered into with chiefs having the sovereignty. The contrary opinion was pronounced by the Supreme Court in Wi Parata v. The Bishop of Wellington (3 N.Z. Jur. N.S. 72). The terms employed and the mode of execution of the treaty leave it at least an open question whether it was so regarded at the time. It professes to be made with certain federated chiefs and certain chiefs who are not federated, but it does not state over what territories they exercised authority, though the text of the treaty seems to suggest that it was contemplated that it should be made with several chiefs who might possibly be regarded, and were provisionally and hypothetically treated as sovereigns of their respective territories. Later it became a matter of general knowledge, derived, I presume, from maps prepared pursuant to section 21 of "The Native Land Act, 1873," that there are eighteen or twenty tribes in New Zealand. If that be so the numerous signatories of the Treaty of Waitangi can hardly be described as sovereign chiefs. I agree that if they had been explicitly so declared by Her Majesty's government, or had been so treated in a course of political transactions that would have been sufficient to make them so, and that their numbers and their individual unimportance would not have rendered this impossible, provided that in each case there was a sovereign to a territory. Hemchand Devchand v. Azam Sakaral Chhotamlal (1906, A.C. 212). The whole current of authorities shows, however, that the question of the origin of the sovereignty is immaterial in connection with the rights of private persons professing to claim under the provisions of the treaty of cession. Cook v. Sprigg (1899, A.C. 572). Such a treaty only becomes enforceable as part of the municipal law if and when it is made so by legislative authority. That has not been done. The sense in which the treaty has received legislative recognition I will refer to later.... From the earliest period of our history, the rights of the natives have been conserved by numerous legislative enactments. Section 10 of 9 and 10 Vict. cap. 103, called an Act to make further provision for the Government of the New Zealand Islands (Imperial, 1846), recognises the laws, customs, and usages of the natives which necessarily include their customs respecting the holding of land. Section 1 of 10 and 11 Vict. cap. 112, called an Act to promote colonisation in New Zealand and to authorise a loan to the New Zealand Company (Imperial, 1847), recognises the claims of the aboriginal inhabitants to the land. To the same effect is the whole body of colonial legislation. The expressions "land over which the Native title has not been extinguished" and "land over which the Native title has been extinguished" (familiar expressions in colonial legislation), are both pregnant with the same declaration. In the judgment of the Privy Council in Nireaha Tamaki v. Baker (1901, A.C. 561), importance is attached to these and similar declarations in considering the effect of colonial legislation. There the whole of the legislation from the date of the constitution is summarised. This summary includes the principal colonial Acts. Referring to section 5 of "The Native Rights Act, 1865," their Lordships say: "The Legislation, both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction of 'The Native Rights Act,' and one is rather at a loss to know what is meant by such expressions as 'Native title,' 'Native lands,' 'owners,' and 'proprietors,' or the careful provision against sale of Crown lands until the Native title has been extinguished, if there be no such title cognizable by the law, and no title therefore to be extinguished." I might refer further to less precise but equally important expressions, such as "tribal lands," in "The Native Land Act, 1873," section 21. The various statutory recognitions of the Treaty of Waitangi mean no more, but they certainly mean no less than these recognitions of native rights.