HOROWHENUA BLOCK.

New Zealand Mail, Issue 1267, 11 June 1896, Page 37

HOROWHENUA BLOCK.

WHAT THE COMMISSIONERS HAVE REPORTED, AS THE RESULT OF THE ENQUIRY. In another column we give copious extracts from the report of the Horowlienua Block Commission. The following are the concluding paragraphs which comprehend the recommendation of the Commissioners In conclusion we suggest : _ 1. That the Crown acquire subdivisions G and 12, and that portion of No. 11 which wo have indicated. . 2. That the tribal estate bo vested in the Public Trustee subject to the right of the owners of subdivision No. 9 to fish m the Hokio stream and Lake Horowlienua. 3 That proceedings be initiated on behalf of the tribe to test the validity of the transfers and leases given by Kemp to t-ir Walter Duller of parts of subdivision No. I t, and if tlio Court should set aside _ these transactions, then that this subdivision should be acquired by the Crown. 4 That on payment of the sum ot XV m to sucii of ICavvana Hunia’s representatives as I the Native Lands Court may find entitled by | law to bo named as his successors, the State farm be vested in the Crown. 5. That Mr Peter Bartholomew be refunded the sum of <£l2o paid by him through the Crown. , f fj That unless account to tho owners ot subdivision No. 11 for .£IOOO rent arid£sCo recoived by Kemp for timber-cutting rights, and also accounts to the owners of subdivi13ion No. 3 for £SOO which lie received tor timber-cutting rights, a statutory charge be placod oil any lands lie owns. 7. That the proclamation of tho 20th Juno, 1878, be declared to be revoked as from the year 1880. , . . ~, S. That the portion of subdivision, 11 oceu* pied by McDonald’s homestead and gravoyard bo reserved. 9. That out of the moneys to be paid by the Crown for a portion of subdivision No. 11 for subdivision No. 12 a sum equal to the amount paid to each of tho owners of subdivision No. G be paid to tho persons named m the second schedule attached thereto. I 10. That the title to subdivision No. 9 be vested in the persons named in tho third schedule hereto attached. All of which matters wo rcspectiuily submit to your Excellency. A RESUME OF THE RETORT. Appended is a brief resume of the report: Tho Commissioners report that throughout the enquiry they wore careful to give the Natives every opportunity of bringing before them any matter they wished, the more so as the position of Sir Walter Duller, who represented a large number of those interested, seemod to thorn to be peculiar. Ho was appearing professionally for Major Kemp and a largo number of the tribe, whilst the interests of Kemp and the tribe were diametrically opposed to each other ; Kemp being admittedly in tho position - -as to the bulk of tho land—of a trustoo who could not give an account of his dealings with the trust pioperty, whilst the tribes were in the position of cestui ([uitruslcnl, examining their trustee as to his dealings with their property. And Kemp was not only in this position, but was actually claiming and through him Sir Walter Duller was claiming—as his own property part of tho tribal land in antagonism to tho tribe. Tho Commissioners regret to have to report, speaking generally, that the evidence was most unreliable. The Natives themsolvcs scorned to have mado it a practice to discuss, before going into tho various courts, the testimony which they should give, and co have built up that testimony, not according to facts, but according to the exigencies of the case which they wished to make m tho Court. . ~ As an illustration of this they refer to the ovideuco of Major Kemp. In 1872-73 the Native Land Court was enquiring into the question, What tribe or tribes was or were entitled to this land? Kemp and Huma (Kawana) were then friends, and it was to their interest to show that the Ngatir.mkawa had not occupied certain portions of the block. Before the Commission Kemp and representatives were in conflict. In 18/3 Kemp swore positively that he and Hunia had built a certain pa. Before the Commission Kemp swore that Hunia had had nothing to do with that pa ; that he (Kemp) had built it, and that tho pa Hunia hau built was at another place altogether. His attention was drawn to what he was reported to have said in 1873 ; ho admitted that lie was correctly reported, and when- asked for an explanation ot the discrepancy he stated that what lie swore in 1873 was false, and that he and Hunia wero then frionds, and that lie (Kemp) lias sworn as ho did in order to defeat the Ngatiraukawa claims, and because those who wero conducting tho arrangements in 1373 had said that all must speak so as to toll one story. Kemp also admitted that a woman named Kiritotara gavo false evidence in 1873, and that she did so at his (Kemp’s) instigation. Kemp’s domoanour when giving evidence did not give the Commission the impression that he was honest. To his own solicitor’s questions he gave at once clear answers, but to those of tho persons cross-examining him his answers were most evasive. Another Native named Pakite Hunga admitted that at the Nativo Lands Court ho committed dolargo' amount of tho testimony, the report

continues, was hearsay, and it was evident to tho Commissioners that matters in connection with the block bad been so much discussed amonest tho Natives that it was impossible for them to sever in their own minds facts which they knew from statements which they had heard. That remark also applied, to the Europeans, who had no possible object in giving false tesitmony, nor could implicit reliance bo placed on the minutes of the earlier Nativo Lands Courts. Tho report then proceeds to give a detailed history of the Horowlienua Block, and in doing so says it is a matter of great regret that much of the dilliculty which has arisen in connection with it is directly traceable to tho non-exercise by the Native Lands Courts of the powers vested in them. 11l 1573 the Court (lid not, as it seemed to the Commissioners it should have done, ascertain the particulars of the interests of tho persons named in and on the back of the certificate which it ordered to issue. On 18th July, 1887, Kemp (as lie admitted, without any further consultation or authority from the tribe) had an interview with tho Under-Secretary for Native Affairs, and three days later, without any reference to his tribe, accepted an offer for the land at 30s ail acre, and on the following day received ,£2500, the. balance of the purchase money being left at interest, that sale, it would lie seen, ignored every condition upon which /done Kemp was authorised by tho tribe for whom lie was a trustee to sell. So far as they could ascertain, not a penny of the <£2500 Kemp received was accounted for to die tribe, and there was nothing ill the evidence to suggest that the Crown or its officers had notice ot any trust or matter which rendered its or their action other than ln>na Jute. On March 20th, 1891, Kemp received the balance of the purchase money, making a total of <£o2lo 13s Bd, of which lie professes to he unabloto give any account whatever. Ho had, therefore, not only in fraud of his tribe sold the land upon terms which they did not authorise, and wero not privy to, but in addition ho had not spent the value in paving for the subdivisional surveys, and on his oath now states that ho is unable to HUgge.-t how any of it has been spent. They can, they say, only nrrivo at the eonelusion that Kemp has spent this money in a manner which ho knows is unjustifiable, and that he gives no explanation of his expenditure, not because ho cannot, hut because ho will not or dare not do so. Further, they state in regard to subdivision No. 3 that Kemp received from Mr Bartholomew a sum of £150(1 for the right to cut timber on 1000 acres of this section, but this money docs not appear to have been accounted for by Kemp. With regard to subdivision No. 11, tho report savs it was admitted on all sides that the purchase of the State farm was an excellent thing for tho district, and that the price, <£! per acre, was a fair one. No complaint was made by tho Natives as to tho sale or tho price ; what they objected to was to Jlunia receiving the purchase money. The farm does not interfere with any of the dwellings or cultivations of tho Natives, and the land, covered as it was with bush, was practically useless to them before the Crown took possession of it. Under all tho circumstances tho Commissioners iiavo no hesitation in expressing the opinion that the best tiling for all persons interested would bo to complete the purchase, treating tho farm as Kawana Hunia’s share in tho block. Tho total purchase money, <£ooo9, would belong' to tho representatives of Kawana on their proving succession, and Warona and Wiriliana llunia would, before they received any further portion, have, as between themselves and the remainder of Ivawana’s successors, to bring the <£'2ooo already paid into account. Kemp alleged that subdivision No. 14 was his own absolute property, but the Commissioners are ol opinion that lie has not the least right to support his assertions. Sir Walter Duller had purchased part of this subdivision, and taken t ho remainder on lease, and on 20th May, 1892, Kemp, in consideration of the sum of .£lO, transferred 2 acres 1 rcod to Sir Walter Duller. On the same dat; Kemp executed a lease to Sir W. Duller of SSI acres 2 roods 1G perches, for 21 years, at a rental of -£GO per annum. On October 31, 1892, Kemp transferred 8 acres 3 roods 20 perches to Sir Walter Duller for £B7 10s, and on the same date lie leased a piece of tho subdivision for G years from May 20, 1913, at a yearly rental of £25. By lease dated September 5, 1892, Kemp leased the remainder of the subdivision to Sir Walter Duller for 27 years from May 20th, 1892, at a rental one peppercorn for the first six years, and during the remainder ot the term at a yearly rental of £GL Sir Walter Buller’s estimate of the value of the land was £1 per acre. Mr .1. McDonald valued it at nearly double that sum, whilst the experts who valued the ground at the request of tho Commission valued it at £G 10s per aero. But, taking Sir Walter Buller’s opinion as correct, they think a grievous wrong has been done to the tribe by leasing the land for such long periods at such a low rental. With regard to tho advance of £SOO made to Kemp by Sir Walter Bullor, and for which a mortgage was given, tho Commissioners say the'mortgage was given by Kemp, not for the sum advanced, but for unknown sums, to Sir Walter Duller, who for years acted as his confidential adviser, and who already held leases (prepare 1 without Kemp having independent legal advice). of the land mortgaged, which did not expire for a long period, at a yery low rent. Before tho Com-

mission Sir Walter Duller said he did not know what was owing under the mortgage, that he would have to communicate v ith Kemp, and after an adjournment he produced an account showing that, exclusive of interest, ho claimed £2920 10s 7d to bo secured by this mortgage. Whether these leases aud this mortgage would be upheld.by a Court of Equity is a matter of law which the Courts alone can decide. It scorned to them a matter of grave doubt whether tho Courts would not hold, apart from any question as to whether Sir \Y alter had or had not noticed that the property was trust property, that, as Kemp had not independent legal advice, as the parties were not at “ arm’s length.” and as the mortgage was given when Kemp was in a position which practically left him no option, and was given to secure unknown amounts, Sir Walter Buller’s position with Kemp was such that tho leases and mortgage (except as to the £SOO advanced when it was given) must be set aside. The Commissioners’ opinions with regard to the matters they were charged to enquire into are briefly Except subdivisions 1, 9 and 10 the whole of the block was subject to a trust for the members of the Muaupoko tribe, and subdivision 9 is subject to a trust for the members of the Ngatiraukawa tribe. Subdivision No. 1 bus boon transferred to the Wellington-Manawatu Railway Company by Kemp. Subdivision No. 2 lias been transferred for £OOOO to tiie Crown. Subdivisions 3,1, 5,7, 8 and 15 have been transferred to tho Nativo owners. Kemp has received £12,000 in connection with the block, and tho money owing by him should, il recovered, bo divided among the persons mentioned. Tho Crown has no claim against either Kemp or Huina. As to Sir Walter Bnller’s transactions with regard to subdivision I t, they think that, at any rate as to some, if not all, of them, lie had express notice that tho land dealt with was subject to a trust. They believe no difliculty will be found in making an arrangement with Mr Bartholomew, to whom a lease had been granted to cut timber on subdivision G, and they suggest the advisableness of considering whether tie Crown should not acquire a block of 1500 acres forming the north-eastern corner of subdivision 11, tl.io remainder of tho subdivision to be vested in t’ne Public Trustee for the members of tho tribe entitled fc > it, the other portions to be used by the Natives.