Maori Land Laws

Timaru Herald, Volume XIIIC, Issue 14141, 26 February 1910, Page 2 (Supplement)

Maori Land Laws

HISTORICAL SKETCH. After a prolonged hearing at Invercargill to settle the conflicting claims of different parties of Maoris to certain mutton bird islands in the South, on Saturday last Mr Jackson Palmer, Chief Judge of the Native Land •Cotirt, delivered a judgment in which he mentioned some interesting facts of Maori history, and points, in their ancient land-holding customs. His Honor said:— In giving a decision in this case it becomes necessary to trace the history of the Maori in the South Island. About the beginning of the 15th centtiry the Maoris arrived in New Zealand, exterminated a race of people they found here, and parcelled out the land among themselves. In course of time every acre had a known owner and boundaries were set up.' The land so apportioned among them, was, held by what is termed in this Court a "take tupuna," i.e., an ancestral title. One section of the immigrants that came down in the Arawa canoe, found their way to the South Island soon after the arrival of that canoe at Maketu,. Bay of Plenty. This section was the Rapuwai. A further section of safe Arawa people scon followed, and joined with the Rapuwai, namely,'some of tho descendants" of the Chief Waitaha. These Waitaha and Rapuwai ! soon parcelled out the whole of tho South Island amongst themselves. They ■ became very numerous, and occupied jit in peace. Then.' after war . had broken out in the North Island (about' 1 1577), the Ngatimamoe (a tribe originally coming from tho vicinity of I Maketu) crossed over 'into tho South j Island, exterminated the former ia- ; habitants, divided the land among j themselves, and .held it for abont 100 years. About 1677 the Ngaitahn (a tribe whi"h came from the -HawVe's Ray locality), settled in i\ -oa at Wel-lin;-ten' .Head?,, ofor.se-:l "over the. Straits, and invaded tho Ngatimamoe. .They exterminated . that trib?.;excont ■the fow whom they absorbed into their tribe, and the few who hid in the.caves and moimteins-of'tho'y"'thern f the Southern Alps. Thus the Ngaitahu became .possessed ,'cf the lands, I and never lost thorn, excont in the | northern oortiou of the South Island, ! whore Raunaraha, about 1828, "com- : menced his invasion and defeat of the ! Ng'jri'tnhii, even carrying disaster to the Ngaitahu over the whole Island.. A mere raid, or_ even ' many victories, dees net constitute a title by conquest ("take R.airoatu") unless the victors occupy the lands of toe conquered, and hold it against outsiders; this Raupnrnha, did not do in tho southern part ; of this though he did in portions cf the northern end-'.therefore.: j-the ''"take" fright of title) remains to I the prcr.jnt day in the Ngaitahu. In tl«» present case the witnesses for all nirties the history of these lands- down .to the -co-mplstiVn of the Ngaitehu conquest (about 16S0), hut from that on they have left the Court in darkness. They have not pliown how the conquered area ■wi><? liarcollßd out. or how "any ncticular members oc.eiroj'ed ■■particular or had their tribal rislits- located in nnrti,.-;i)ar olaces. Thjiy have left the -C"u'rt ho "fill in this' bknk period cf .-bonh- 230 yeai-s as it en. thcTjcrh the Court fre-au-ntly told them throughout the proceedimrs that thp cnnques'fc was admitted, and v.'hat the Court wished to know was how the land was parcelled out since the conquest, and" how certain people became entitled to the right of occupation in some nlaees,-sand others to other places, and that -the Court' wanted that information, narticularly in regard to the Titi Islands. For the want of this information the Court is-r-lared in a great difficulty in irivinc a decision and will have to rely upon j what may be termed modern occu'pa- J tion; that is, occiiDation somewhere about or since 1840. This compels thei Court to briefly set out the" law of ancient Maori .Custom-relating to land ', which is as follows:—"Might was I Tight ' after that period when warfare 1 broke out. This law of force continueduntil our civilised law came into existence and recognised the Maori titles as they then, existed; from that time ™\ tlle l? w of f °rce ?»ased and no new; title could be acquired by force. This period of time was fixed bv ,the Land j Court as 1840, and this fixture ■ has I been continually followed bv the Court and is now law. The law of force,'' therefore, compelled the tribe to hold a"840 S agamst , outsiders down to Two ingredients were necessary to I constitute-native'titles, viz. (1) "Take" ' (nght oi- root of title) ; (2) occupation. As.before stated, itlhas not been .shown to the Court which Particular members, of rthe Nsaitahu had '.'take" , to thes© Jslands, but the case is left in the unsa.tisfact.ory. state that the whole ot the Ngaitahu had conauered thec ■whole land. I cannot award- .these: ■ Islands vto .wliole of ithe JNgaitahu, because, .lalthougTt a tribe owned the I whole lands of the tribe and all had : to protect the tribal lands from ag- , gression outsiders, still .the Maoris themsel-Bes.had intertribal laws relating i jto the Tjgllt-of occupation over parti- 1 : eular vpn-rts ! by particular ;mambers of ' : i: the -tribe.- These intertribal laws I r seemed.peculiar to. the European ideas; ! [teg..a nwn of standing might acquire I , an.intertribal right of occupation from i another member or members;of his own ' .tribe beca-use- his blood was spilled I -awn ;.a. particular jplaoe; or iagain, .the. |Tight of-occupation miirht change hands j-through '.the imfaithfulness of one df I j-the }Tn ? mbe«s *wiyes v :in fact, these intertribal laws re occupation are- too ' numerous 'to mention :here. iNone *e'f I these intertribal:laws Telatina'.'to occupation -have been .before the' Court nor ' have -the '.facts Telating to the same, I and •showing. 'how^the -Titi Islands came

•into the occupation, of certain persons of the: Ngaitahu been placed before tnss Court. In transmitting the • Maori : titJs into European" Mile the ■.Native. Laird Court, 'from iff'.ineep-. tjo-U; has, refused to give a European titleto the proper occupiers under a " take" and reviving" to the tribe its communistic tribal right. Once, the' European title is issued tli3 occupiers under a proper '■take'' hold'as tenantn in comnn-n, fused frof the tribal rights. So in the present case the title, will issue to those who had "taia"/ and "occupation," and they will hold as tenants in common freed from the communistic tribal right. It may be noted there are three classes of title:—Cl) "Take Tununa" (ancestral); (2) "Take I?aupftu"" (conquest); (3) "Take Tuku" (gifts for or without consideration and either absolute or limited), but all three classes require occupation down to 1840. The Native Land Court has from earliest times'laid down lethal maxims in regard to "take" and "occupation." which : are as follows:—(a) "Take," without occupation, give 3 no title; (b) occupation, without "take," gives no title; '(c) long occupation before 1840 is con- ; elusive that it is founded upon a ; "take"; (d) uncontested occupation in ; 1840 is the strongest evidence of a \ "take," but ;nay be rebutted by very strong evidence; (e) occupation since 1840 is presumptive evidence t>f tested occupation in 1840, but such evidence is weighed according to the length and strength of such occupation, and according to the weight given to it, so will it require stronger evidence , to rebut it.

I HOW RIGHTS WERE LOST. 1 An instance of how a chief's right to ■land mifht be lost is given in one of the detailed decisions:— The claim, spt up .by Mrs Rickus, on behalf -of Horomona Poiho, comes next. Ther-i is no clear evidence of occupation by Horomona at 1840 that woiild justify the Court in assuming a take,' but there is evidence of his occupation imreediatelv after IS4O and up to about 1845 or 1846, that would justify the Court in assuming that he had occupation in 1840, and thus on the ab-nve maxims this Court would ioJI? "Milled a correct occupation in 3840, but for the'fact that Horomona i oiho had not treated his wife Wikitona in the wtw that th ß peonle thought bo sbnvU, and under their pressure he left the district about 1843, and only returned for a day or two to participate in the nroceed's of Clarke's purchase of. Stewart Island. •Had a chief of Horomona's standing remained with, his rseonle he would have had undoubted rights, but he left and never returned, except as above shown. Tt is a maxim in the law of ancient Maori custom that if a chief leaves his people, under such circumstances as above "shown, he loses his rights unless he returns to them again and they restore his rights, the Maori expression bemg that "his fires have gone out." and require to be rekindled by the consent of his people. If he dies awav from his neople. it requires, according to the Land Court, strong evidence that his fires were rekindled. None of Horomona's people came back t?!l about fiVe years ago, when Mrs. ;J..!eki!ss brother came here and he was j allowed to go to Wharepuaitaha, I ,X°" sI l, * he ,' arol,a " of Mr " Spencer! | After this Mrs Rickus came, and (trouble ensued. .This, led to the present refusal to allow Horomona Poiho's hvp.3 to be rekindled. That this right has not been rekindled is recognised by jToone TJrnraki, who is the son of the j eider brother of Horomona Poiho. He | gave evidence, and said he had no claim with, or through, Horomona i iiTV I r , e it T not ' for this trouble I wjth Mrs Rickus I have no doubt that j Horomona's fires would have been I allowed to be rekindled to Whare- ) nnaitaha Island. Perhaps, before the i -I? 't? 3 e,osed - if Mrs Rickus arranges j with Haereroa's people, all parties may i admit her to Wharepuaitaha; hut Horomona s rights (if anv) were lost'when he died away from his people, and no I ™?p *s7*x, bis fires aligllt ' from * b °nt |IK»b till the attempt a year or so ago, that is, for a period of about 60 years!" I Jhererore, in this case, I cannot pre- . sume a correct occupation in 1840 Mr Rickus makes a. claim to two islands through "Heke." who had no right; therefore his claim is rejected