SESS. 11.—1897. NEW ZEALAND.
THE HOROWHENUA BLOCK: MINUTES OF PROCEEDINGS AND EVIDENCE IN THE NATIVE APPELLATE COURT UNDER THE PROVISIONS OF "THE HOROWHENUA BLOCK ACT, 1896," IN RELATION TO DIVISION XIV. OF THE SAID BLOCK.
LEVIN, 25th FEBRUARY, 1897, TO Bth APRIL, 1897.
Presented to both Houses of the General Assembly by command of His Excellency.
In the Native Appellate Coubt, ) Distbict op Wellington. j In the matter of " The Horowhenua Block Act, 1896," and in the matter of Meiha Keepa te Rangihiwinui claiming to be the beneficial owner of Horowhenua, Subdivision XIV., containing 1,200 acres. I, Meiha Keepa te Rangihiwinui, an aboriginal Maori chief residing at Wanganui, do hereby, in pursuance of the provisions of "The Horowhenua Block Act, 1896," make application to the Native Appellate Court as defined by "The Native Land Court Act, 1894," being the Court referred to in the first-mentioned Act, and pray that the said Court after hearing such evidence as may be adduced, will make all necessary orders for insuring the issue to me of a certificate of title under "The Land Transfer Act, 1885," in respect of the above-mentioned Subdivision XIV. of the Horowhenua Block, as the same is more particularly described in the First Schedule to the first mentioned Act. Dated at Wellington, this 22nd day of October, 1896. Meiha Keepa Rangihiwinui. Nos. 10 and 13. In the matter of " The Horowhenua Block Act, 1896," hereinafter called "the said Act." Application is hereby made to the Native Appellate Court by the undersigned persons, claiming to be interested, to hear and determine under the provisions of the said Act :— (1.) Who are the persons entitled under the provisions of "The Native Equitable Owners Act, 1886," to Divisions 6, 12, 14, and such portion of Division 11 of the Horowhenua Block as is subject to the provisions of " The Native Equitable Owners Act, 1886." (2.) What portion of Division 11 of the Horowhenua Block are the members of the Ngatihikitanga, Ngatipareraukawa, Ngatiparekohatu, and Ngatikahoro hapus of the Ngatiraukawa Tribe entitled to as reserves under the provisions of subsection (d) of section 8 of the said Act. (2a.) Who are the persons so entitled, and what are their relative shares or interests. (3.) What persons, if any, other than those named in the Third Schedule of the said Act, are equitably entitled to be included in the Land Transfer certificate for Division 9 of the Horowhenua Block. (4.) What amount, in addition to the sum of £1,266 19s. 5d., as provided by section 19 of the said Act, are the persons who shall be so found by the Court to be entitled to Division 12 of the Horowhenua Block to receive, and in what relative proportions. Wibihana Hunia. Wakena te Hakeke. HIMIONA KOWHAI. Ibitana (tana x maka) Hanita. Hanita (tana x maka) Maunu. Dated at Levin, this 4th day of January, 1897. Reed. N.L.Ct.O., 5/1/97. A similar application (see No. 13 in Schedule below) to the above received from Raraku Hunia and' Jlajtai Porotene, dated the 12th day of January, 1897. .
Notice of Time and Place of Sitting of the Native Appellate Court under "The Horowhenua Block Act,,1890."
Native Land Court Office, Wellington, 14th January, 1897. Notice is hereby given that the Native Appellate Court acting under the provisions of " The Horowhenua Blook Act, 1896," will sit at Levin on the 25th day of February, 1897, to hear and determine the applications affecting portions of the Horowhenua Block set forth in the Schedule hereto. All persons interested are hereby notified to attend at the time and place aforesaid. Edward Buckle, Registrar.
[Wellington, 97-9.] SCHEDULE.
Name of Applicant. No. of Subdivision affected, j Nature of Application. [o. 1 Meiha Keepa Rangihiwinui (0. 78-41, W. Rhg. 2/215) Heni te Rei and others (0. 83-3, W. Rhg. 2/216) Heni te Rei (O. 83-5, W. Rhg. 2/217) No. XIV. That certificate of title under Land Transfer Act be ordered to be granted to applicant. That certificate of title under Land Transfer Act be ordered to be granted to applicants. For order under subsection (d) of section 8, Horowhenua Block Act, vesting reserves in members of hapus of Ngatiraukawa Tribe. That certificates of title under Land Transfer Act be ordered to be granted to applicants. That certificates of title under Land Transfer Act be ordered to be granted to applicants. For order declaring applicants beneficially entitled. That reserves referred to in subsection (d) of section 8 aforesaid be awarded to the hapus named in said subsection. For award to Ngatiparekohatu Tribe of reserves referred to in subsection (d) aforesaid. 2 No. XL 3 Part of No. XL Meiha Keepa Rangihiwinui and others (0. 83-7, W. Rhg, 2/219) Meiha Keepa Rangihiwinui and others (0. 78-45. W. Rhg. 2/220) Meiha Keepa Rangihiwinui and others (0. 78-47, W. Rhg. 2/221) Edward Nicholson (0. 83-9, W. Rhg. 2/222) No. XL 5 No. VI. .. .. •6 No. XII. 7 No. XI. A. Knocks (agent for Amy Wallace and others), (0. 83-11. W. Rhg. 2/223) A. Knocks (agent for Mrs. Matilda Morgan), (O. 83-13, W. Rhg. 2/224) Wirihana Hunia and others (0. 78-49, W. Rhg. 2/230) No. XL No. XI. For award to Ngatihikitanga Tribe of reserves referred to in subsection (d) aforesaid. 10 Nos. VI., XL, XII., XIV. For ascertainment of title under " The Equitable Owners Act, 1886," to Subdivisions 6, 12, and 14, and portion of Subdivision 11 ; also for award of reserves out of Division 11; also to ascertain amount of purchase-money to be paid by the Crown under subsection (e) of section 8 for purchase of Division XII. For investigation of title. 11 12 Kopata Ranapiri and others (O. 83-17, W. Rhg. 2/231) The Minister for Public Works (0. 78-51, W. Rhg. 2/232) Itaraku Hunia and others (0. 78-55, W. Rhg. 2/233) No. XI. (Whakamaungariki Waiwiri) No. XII. To ascertain amount of purchase-money to be paid under subsection (e) of section 8 aforesaid. For ascertainment of title under "The Equitable Owners Act, 1886," to Subdivisions 6, 12, and 14, and portion of Subdivision 11; also for award of reserves out of Division 11; also to ascertain amount of purchase-money to be paid by the Crown under subsection (e) of section 8 for purchase of Division XII. 13 Nos. VI., XI., XII., XIV.
Sess. 11.—1897. NEW ZEALAND.
Presented to both Houses of the General Assembly by Command of His Excellency.
THE NATIVE APPELLATE COUBT, LEVIN.
MEIHA KEEPA RANGIHIWINUI, CLAIMANT. WARENA HUNIA AND OTHERS, COUNTER. CLAIMANTS. Thursday, 25th February, 1897. The Court opened at 10.15 a.m. Present: A. Mackay, Esq., Judge, presiding; W. J. Butler, Judge; Atanatiu te Kairangi, Assessor ; A, H- Mackay, Clerk. The Court announced that all cases notified in Panuis dated the 14th January, 1897, and Bth February, 1897, were now before the Court, and would be taken in the order in which they were set down unless sufficient grounds were shown for altering the arrangement. Judge Wilson appeared and asked that his evidence might be taken first if none of the parties would be prejudiced thereby. Sir W. Butter appeared with Mr. Beddard for Meiha Keepa te Eangihiwinui. Mr. John Stevens appeared for Warena Hunia, Wirihana Hunia, and others, and announced that Mr. Stafford was with him to advise and argue upon any points of law that might arise during the progress of the case. He would also watch the case on behalf of the Public Trustee. Sir W. Butter asked if Mr. Stafford represented the Crown. Mr. Stafford replied that he did not, but that he would advise Mr. Stevens on questions of law. Sir W. Butter urged that the Public Trustee could not be a party to the case, and protested strongly against his being represented Mr. Stafford stated that he appeared merely to watch proceedings on behalf of the Public Trustee, and to interpose if necessary, and if the Court would allow him to do so. In addition to this he appeared with Mr. Stevens, to advise and assist him on questions of law. The Court: The Public Trustee has no status before this Court. Mr. D. Scannell appeared for Hera te Upokoiri, and to some extent for Eakera Hunia, but would not take part in the case unless their brothers did anything prejudicial to their rights, or unless it became necessary for him to take action under section 4 of the Horowhenua Block Act. Colonel McDonnell appeared for Earaku Hunia and three others. Mr. Baldwin appeared on behalf of Nepia Pomare and others, direct descendants of Te Whatanui, to oppose certificate of title being granted to Kemp in Section No. 14, or to others in any of the other sections. Sir W. Butter contended that Mr. Baldwin's clients had no standing unless they had sent in an application within the time allowed by the Horowhenua Block Act. Mr. Baldwin argued that his clients and any others could claim a beneficial interest in the land under "The Equitable Owners Act, 1886." The inquiry could not be confined to any particular persons or hapus. Sir W. Butter again contended that the jurisdiction of the Court was limited to the persons whose names appeared in the certificate of 1873 and the forty-eight added by Parliament, unless an application had been made in the time allowed, and they were confined to certain reserves agreed to by Kemp in No. 11. Mr. Baldwin suggested that if the Court was in any doubt, a case should be stated for the opinion of the Supreme Court as to whether the provisions of the Equitable Owners Act were to be confined to the Muaupoko.
THE HOROWHENUA BLOCK. MINUTES OF PROCEEDINGS AND EVIDENCE IN THE NATIVE APPELLATE COURT UNDER THE PROVISIONS OF " THE HOROWHENUA BLOCK ACT, 1896," IN RELATION TO DIVISION 14 OF THE SAID BLOCK.
Mr. Stafford : If the Act is construed as Mr. Baldwin wishes, the Court would have to go back to 1873 and reinvestigate the title to the land. This would be monstrous. The Act assumed that the persons in the certificate were the cesluis que trustent. Mr. Baldwin: lam now instructed to act for Kipa te Whatanui, who has sent in an application. We claim that Major Kemp is a trustee for certain Ngatiraukawa. Mr. A. McDonald asked to be allowed to appear for Hirniona Kowhai. Suggested that any one should be allowed to set up a claim provided that they were prepared to pay costs of Court. Sir W. Butter objected. Mr. Baldwin still claimed that all persons who could prove that Kemp was their trustee in 1886 and 1873 could come in. Mr. Stevens : The Legislature never contemplated making the land papatupu. Kemp could not have been trustee for the Ngatiraukawa, because none of them appear in the lists. The Court : It is clear to the Court that its jurisdiction is confined to the persons who appear in the certificate of 1873 and the forty-eight persons. Mr. Baldwin appears to rely too much on the provisions of the Equitable Owners Ace. * Those provisions are only imported into this Act for certain purposes, which are clearly set out in section 4 of the Horowhenua Block Act. Mr. Stafford would like to know what Kemp's position was. He had held a Land Transfer title, but it had been taken away by the Horowhenua Block Act, and he could not claim as a cestui que trust. Sir W. Butter stated that Kemp was the beneficial owner of Section 14, and that the Horowhenua Block Act provided that if the Court decided there was no trust the title would reissue to him. The Court: The question is whether Kemp's title is destroyed or only suspended. Mr. Beddard argued that the Court had power to decide the question of trust, and, if there was no trust, to order that the title should reissue to the original owner. Sir W. Butter contended that Kemp was beneficially interested in Section 14 as absolute owner, and therefore could apply. Kemp had both a legal and equitable title. He was entitled to make the application even if only as one of the 143. The Court suggested that the better plan would be for Sir W. Buller to allow the other parties to assail Kemp's title. Mr. Stevens said that it appeared that Kemp's application was technically wrong, and that Sir W. Buller was seeking to have it amended. In his opinion, the proceedings would be shortened by taking Horowhenua No. 11 first. It was the largest block, and if No. 14 was taken first it would be necessary to go over the whole of the evidence again when No. 11 was dealt with. He asked that No. 11 be taken first. The Court: The main question is, Who is to begin in either case? Mr. Stevens would have no objection to Sir W. Buller commencing so long as he did not lose the right of reply. Sir W. Buller said he was ready to go on as soon as he knew who his opponents were. The Court held that Kemp could not be a trustee and a cestui que trust as well. Mr. Scannell submitted that, as Mr. Stevens was making a concession to Sir W. Buller, he was entitled to reply. The Court: If Sir W. Buller begins he will have the right of reply. Is Mr. Stevens ready to disclose the names of all his clients ? Mr. Stevens asked the Court to decide who was to begin. The Court: If Sir W. Buller wishes to put himself in what the Court considers a disadvantageous position, the Court will allow him to go on. Sir W. Buller in that case would prefer his opponents' case being taken first. Mr. Stevens again suggested that No. 11 should be taken first. Sir W. Butter objected. The Court did not see why No. 14 should not be taken first. Mr. McDonald pointed out that Nos. 11 and 14 might be taken together. Sir W. Butter would rather commence than have the two cases heard as one, but would like to know who his opponents were. Mr. Stevens said that all the persons whose names appeared in the schedule to the Act claimed a beneficial interest in No. 14, but he only appeared for Winhana and Warena Hunia, together with those who claimed with them. The Court remarked that the majority of those in the schedules did not appear to be represented. Colonel McDonnell handed in names of persons he acted for—viz., Teone Broughton, Kate Broughton, and Emily Broughton, and stated that Te Earaku wished to make an explanation to the Court. The Court decided to hear her, and she said that Kemp claimed to be the sole owner of No. 14. Neither she nor those with her disputed his right to do so. Did not object to Kemp having the whole of No. 14, because he was not awarded any other portion of the block for himself in 1886, whereas all the other Muaupoko had awards made to them. Paki te Hunga preferred a claim to Section 14, and said that there were others with him, but that their conductor had not arrived. He objected altogether to this section going to Kemp alone. Rangimairehau appeared on behalf of all Muaupoko. Did not oppose Kemp's claim to the whole of Section 14. Took the same view as Earaku and party. Special licenses were granted to Colonel McDonnell and Mr. John Stevens : £1 each paid. The Court adjourned to enable Mr. Stevens and Paki te Hunga to prepare their lists of names.
On resuming at 2 p.m., Mr. Hector Macdonald was sworn in as interpreter. Paki te Hunga handed in list of names. Kipa te Whatanui wished to make an application under section 39 of the Act of 1894 with reference to Section 14. The Court informed him that applications of this nature could only be dealt with under a reference from the Chief Judge, and that the only persons entitled to apply under the Horowhenua Block Act were those in the certificate of 1873 and the forty-eight persons named in the Second Schedule to the Act. Kipa te Whatanui submitted that Manihera te Eau being in the title represented the whole of the Ngatiaraukawa. He was told that the fact of Manihera te Eau being in the title did not give other Ngatiraukawa any right. Mr. Knocks informed the Court that the Muaupoko who applied with Manihera te Eau wished to withdraw their application so far as it referred to Section 14, and that they still intended to go on with it as regards the other sections. Mr. J. M. Eraser put in a retainer signed by Eangimairehau and others authorising him to act for them in Section 14. He stated all his clients' names appeared in the schedule to the Act. Mr. Stevens announced that he now appeared for Wirihana and Warena Hunia only, the other Ngatipariri who originally instructed him having cancelled his retainer. The Court asked Sir W. Buller if there was now sufficient information as to counter-claimants to enable him to go on. Sir W. Butter intimated that he was prepared to open his case, but list of counter-claimants should be closed. The Court said that if that was done all those in the schedules must be represented before the case could go on. Mr. Stevens urged that some time should be allowed for the people interested to attend. Sir W. Butter admitted the justice of Mr. Stevens's contention, and said that the interests of those not represented could safely be left to the Court. The Court called upon Sir W. Buller to open his case. No. 1, Horowhenua No. 14.—Meiha Keepa te Eangihiwinui, Applicant. Sir W. Buller: The Horowhenua Block was awarded to the Muaupoko Tribe in 1873. The Native Land Court sat in 1886, and, with the joint consent of all the owners, made a partition of the whole block. No. 14 was awarded to Major Kemp. It was the last of the subdivisions. My opening will consist chiefly of extracts from documents. I will therefore, as is customary with counsel in such cases, read most of it. The first question to be decided by the Court is whether Kemp received No. 14 as a trustee. In 1896 a Eoyal Commission, called the Horowhenua Commission, sat at Levin, and made inquiries regarding the title to No. 14 and other divisions of the Horowhenua Block. The Commissioners, in their report, made certain recommendations re No. 14 and other divisions, but none of their recommendations have been carried out by the Horowhenua Block Act, so that the present inquiry is completely untrammelled, and this Court has a clean sheet. The question for this Court to determine is the following: The legal ownership of No. 14 was awarded to Kemp in 1886, with the consent of all the 143 persons (of whom Kemp is one) entitled to share in Horowhenua. Did Kemp take No. 14 as trustee or as absolute owner? If this Court finds that No. 14 was Kemp's own land—his share on the subdivision of the block —then by the Horowhenua Block Act Kemp's Land Transfer certificate, which is suspended, will reissue to him. If the Court finds that Kemp was a trustee for some tribal purpose, it has jurisdiction to deal with the case under " The Equitable Owners Act, 1886," and its amendments. It is admitted that the question is—What occurred at the Court of 1886 ? Judge Wilson will state that when he awarded No. 14 to Kemp on the 3rd December it was openly stated in Court, and understood, that this subdivision was Kemp's own land. The minutes show this, and that it was intended to give Kemp a subdivision for himself. The counter-claimants will be compelled to ask the Court to disbelieve this before a trust can be proved. Will produce a contemporaneous document initialled by Judge Wilson proving correctness of minutes. None of the counter-claimants disputed the minutes before the Eoyal Commission. No. 14 was awarded to Kemp in 1886. For nearly ten years Kemp's title was uncaveated, and in 1895 caveat was lodged not by a tribesman, but by an officer of the Government. Kemp leased, sold, and mortgaged parts of it without objection ; no one claimed a share of the proceeds although all the tribe knew of Kemp's dealings with it. Unless Court believes that No. 14 was for Kemp himself, it must believe that he alone of all those interested got no share of the block. Judge Wilson's Court opened on the 25th November, 1886. Three subdivisions of the block came on, and minutes for orders were made. On the 27th November the Assessor had to leave, and Court adjourned to the Ist December, when another Assessor arrived. The proceedings commenced before the Court on the 25th November, were treated as abortive, and Court made orders awarding every subdivision in the block as though the abortive Court had never sat. Each order was preceded by a declaration in Court that all the owners had agreed and consented thereto. Meetings of the owners were held in a barn, and Palmerson, surveyor, attended and laid off divisions on a tracing as they were agreed to. The Muaupoko had three objects in view—(1.) To cut off one or two subdivisions to meet and provide for outstanding tribal engagements. (2.) To cut off a large residential subdivision on which their kaingas were : this was No. 11. (3.) To cut up the whole of the balance of the block into individual snares. Kemp alone had no share out of Subdivisions 3, 4, 5, 6, 7, 8, and 13, therefore, unless he got No. 14, he got no individual share at all. Judge Wilson will state here, as he stated in the Supreme Court and before the Eoyal Commission, that when he allotted No. 14 to Kemp it was declared in Court that it was
with the full acquiescence of the tribe allotted to Kemp for his own. [Quotes from minutes to show that the purpose for which each parcel was intended was expressed in Court.] The onus is on counter-claimants to prove a trust. The surrender of the title on partition did away with the trust that existed previously. It is for the counter-claimants to show that a new trust was created in respect of No. 14. The order of the Court of 1873 established the fact that Kemp was entitled to something. In 1886 all the owners were awarded something. In 1874 Kemp agreed on behalf of the tribe to give a certain area to the descendants of Whatanui. This piece was to be at Eaumatangi, close to the lake, where Whatanui's people had been squatting. No. 9 adjoins Eaumatangi, whereas No. 14 is at the extreme southern end of the block, abutting on Lake Waiwiri. No. 9 came before the Court in the morning of the Ist December as No. 3, but there was some difficulty as to the boundaries, and the final order was not made until the afternoon, when the boundaries had been adjusted. It was then called No. 9, and was put in Kemp's name for conveyance to the descendants of Whatanui. No. 14 was not awarded to Kemp until the 3rd December following. If the counter-claimants could prove that No. 14 was awarded to Kemp for the descendants of Whatanui they would no doubt establish a resulting trust to Muaupoko, but they cannot do this. I will put in a list initialled by Judge Wilson showing sequence in which orders were made, and which shows that No. 9 was awarded two days before No. 14. The evidence before the Eoyal Commission shows that Nicholson refused No. 14, and Judge Wilson has "sworn that No. 11 sever came before him. as the section for the descendants of Whatanui. N?yills Nicholson's evidence before Horowhenua Commission, page 114, answers 114 to 118, shows that the land that is now known as No. 14 was refused by the descendants of Whatanui before the Court opened in 1886. [Quotes McDonald's, evidence before Horowhenua Commission re Nos. 9 and 14.] The theory of a resulting trust to the Muaupoko Tribe rests on two assumptions —(1) That when No. 14 was awarded to Kemp in December, 1886, it was awarded to him in trust for the descendants of Te Whatanui, if they chose to accept it; and (2) that the descendants of Te Whatanui did not refuse No. 14 until after it had been awarded to Kemp. But the facts are that No. 14 was not given at all to Kemp in trust for the descendants of Whatanui, for, as Nicholson and Judge Wilson prove, they had refused that subdivision a week at least before it was awarded to Kemp. A man cannot give his land to a second man in trust for a third man to create an effectual trust unless all three persons consent. Applying this maxim to the present case, I would say that when Muaupoko allowed Kemp to become legal owner of No. 14 Kemp was not thereby constituted a trustee for the descendants of Te Whatanui unless Kemp consented to be a trustee and the Muaupoko consented to give No. 14 to Whatanui's descendants and they accepted the gift. I will now conclude my address with one general remark. This ease does not depend on Native evidence. There is no getting away from what has been said and done in Court, and these facts do not depend on Native evidence. I shall call one or two leading chiefs to say, on behalf of the tribe, that they all understood that No. 14 was for Kemp's share, and acquiesced in his getting it; but even this evidence is irrelevant. They have consented once for all to Kemp having it. Kemp was given a freehold title to No. 14 by the partition of 1886, and the question is whether that title is or is not trammelled with a trust. Even at the partition of 1886 no claimant for any of the subdivisions gave evidence proving his title, according to Maori custom, to the share he claimed. Such evidence would have been irrelevant, as the partition was by voluntary arrangement, and it would, I submit, be doubly irrelevant now. I put in minutes of evidence taken before the Horowhenua Eoyal Commission, also copy of Judge's minutes and the judgment of the Supreme Court in the case—Major Kemp v. Warena Hunia. The Court adjourned till 10 a.m. of the 26th instant.
Friday, 26th February, 1897. The Court opened at 10 a.m. Present: The same. No. 1, Horowhenua No. 14, resumed. Mr. Bansfield asked whether this Court could deal with his application respecting the reserves in No. 11. The Court informed him that it had the power to make inquiries regarding the reserves; but it did not propose to go into the question at this stage, and advised him to authorise some one in attendance at the Court to let him know when the case came on. Sir W. Butter: It was agreed yesterday that Horowhenua Commission evidence should be put in as a whole. I hand in a copy of it, and will call Judge Wilson. Ask that questions and answers be interpreted. John Alexander Wilson sworn. lam a Judge of the Native Land Court, and I reside in Auckland. I presided at Native Land Court held for division purposes in 1886. The Horowhenua Block was then before the Court for partition. I subsequently gave evidence in reference thereto before the Supreme Court in Wanganui and the Horowhenua Commission. The original title was under the 17th section of the Act of 1867. Major Kemp was the sole certificated owner ; the names of 143 persons were indorsed on back of certificate. I cannot remember whether Kemp was one of the cestuis que trustent, but he was in the certificate. The partition was taken by voluntary arrangement, but ail that was said in Court was on oath. No ancestral title was proved; the partition was agreed to by the owners. I should say that the tribe was in Palmerston, judging by the numbers present. The whole scheme of partition was discussed by them, but it was only disclosed to the Court bit by bit. Major Kemp had an authorised surveyor to mark off on plan the divisions as they were made. I believe his
name was Palmerson. He showed the divisions on the Court plan. The Native committees were all outside the Court. I do not know what took place among them. The application had been made under the old Act of 1882, but we were sitting when the Act of 1886 came into force. I gave Kemp his choice of which legislation he would come under. He chose the old Act. He was entitled to the choice. I do not think it made any difference which Act we proceeded under. The orders would show which Act they were issued under. I had ample jurisdiction under either Act to give effect to voluntary arrangements. We sat, I think, for a couple of days. On third day the Assessor received a telegram that his wife was ill, and that he must return. On my advice the Assessor left. Simultaneously the Clerk of the Court, Mr. Buckle, was removed from my Court. I sent for another Assessor, who arrived in a few days. His name was Kahui Kararehe ;he was an inexperienced Assessor. I see by the minutes that the Court opened on the 25th November. I have never read them through since I signed my orders. Nor have I seen the map that was before us in 1886 since I approved it. Before the first Assessor left several partition cases were brought before vs —three I believe. Whatever was done with first Assessor was considered by me to be null and void, because the partition of Horowhenua was not complete and had to be commenced de novo. When we sat after second Assessor arrived the first thing done was to call over the partitions that had been previously made. The new Clerk of Court was quite inexperienced. I think it is marvellous how well he kept the books considering his inexperience. I trusted entirely to my own notes, which 1 kept several years, along with about a hundredweight of notes of other blocks, and then burnt them. I only preserved those having historical value. I saw no reason for keeping them, as I was no longer a Judge, and the time for rehearing having long expired. I treat my private papers in the same way, and have done so for the last thirty years. It is different now; the Judge's notes go into the Eegistrar's strong-room. At second sitting of Court orders were made for partitions previously made. The first orders were not all confirmed. I made fresh orders to date from the time they were made. Objectors were challenged. Mr. Stafford stated that minute was to effect that first orders were confirmed. Judge Wilson : The minutes are incorrect in this instance. The Chief Judge of the Court was in Palmerston at the time, and reminded me that the partitions made at first sitting were invalid ; but I had already taken action. I challenged objectors before making the orders ; I always do so. The original title for Horowhenua was cancelled by the partition made in 1886. Kemp was a trustee under the original title to Horowhenua. The partition of Horowhenua did away wdth that trust. At the second sitting, which commenced on the Ist December, 1886, we made minutes for orders for the three blocks we had dealt with at the first sitting. I think the order for the railway portion was not made until nearly the last. Then there was an order for a 4,000-acre block in connection with some scheme for a village settlement that had been partially arranged between the Government and Kemp. This block was passed before us. Then there was a piece of 1,200 acres to be put in Kemp's name for the purpose of enabling him to carry out an arrangement with McLean re Whatanui's descendants. W 7 ith respect to this 1,200 acres, Kemp stated to the Court that he wanted a partition made for that piece of land, because when Sir D. McLean was alive he had asked Kemp to set apart 1,200 acres for Whatanui's descendants, but that he (Kemp) had not consented during McLean's lifetime, but that now that his friend was dead he wished to comply with his wishes. The original area was to be 1,300 acres, but, as Whatanui's descendants had already received 100 acres, I believe Kemp considered 1,200 would be sufficient. Kemp indicated on the Court plan about where he wanted the parcel located. I cannot say whether this was in the morning or afternoon. There was some question raised as to the land not being of.the proper quality as soon as locality was indicated. This was raised by a descendant, or some one purporting to be a descendant, of Whatanui. Nothing further was done in this matter just then. Mr. Lewis came and took the 1,200-acre block out of the hands of the Court. He had a meeting of persons interested, in the Courthouse, but did not succeed in arranging the matter, and brought it back to us. On referring to the minutes, I find that Mr. Lewis did appear at the first Court. He did not then indicate where the block was to be located. I cannot remember whether Kemp indicated the location of the land intended for descendants of Whatanui at first Court. The only location I ever heard of was where No. 9 is now. The Court suggested that the proceedings at first Court should be dropped altogether. Witness : I find by minutes that position of No. 9 was mooted at first sitting. At some time or other Mr. Lewis removed the 1,200 acres from our jurisdiction. We had statutory power to do this. He kept it about a week—or, at any rate, some days—and then came back and asked for an order to enable Kemp to carry out some promise. I cannot remember whether he came back personally. I think he went away and sent some one else—-at any rate, we were asked to put the 1,200 acres in Kemp's name. When we made the second series of orders for the blocks dealt with at first Court we did not give them the same numbers; but the first clerk, who was in Wellington, knowing that the second clerk was inexperienced, thought that he had made a mistake in numbering the three blocks of land, but, knowing that we had made fresh orders for them, he took upon himself to scratch out the new numbers and put in the old numbers, and that without reference to me. Eventually, the Eegistrar at Wellington sent me the orders for inspection, and I altered them. I also wrote a letter to the Chief Judge complaining of the clerk meddling with my orders. Sir W. Buller : I now put in record No. 87/445. Witness: The initials on the record are mine, the corrections are mine. The alterations were made and initialled by me shortly after the Court. I caunot say exactly how long. My letter of complaint would show the date. The land for Whatanui's descendants came on third in the morning, but could not be completed then because boundaries were not decided on. Other blocks were dealt with in the meantime, and in the afternoon the land was awarded as No. 9. There was a hitch at first.
They had brought in their plan on a wrong basis, boundaries were incorrect. After some discussion boundaries were agreed upon. I took them down very carefully and sent them to Mr. Marchant at Wellington. They were extracted from my notes and filled half a sheet of foolscap. The reason 1 sent the description of boundaries to Marchant was that the surveyors had made the survey wrongly, and a new survey had to be made before I approved it. The descriptions in the minute-book are not sufficiently full. When I wrote the description of boundaries I knew the land was for the descendants of Whatanui. Kemp and Lewis had both said so on oath in Court. Sir W. Buller produced plans 5213 and 5214, and W.D. 508. Witness : The minutes written on this plan are signed by me. I have not seen this plan since I signed it. [Approved plan of partition produced to witness.] I identify this plan. The plan W.D. 508 is the plan that was before the Court in 1886, and upon which Mr. Palmerson laid off the divisions as they were made. It had previously been approved by Judge Eogan, who made the order in 1873. I put the first minute on it when the Court first opened. It was then almost a blank map; there were no divisions on it. My second minute to the Chief Surveyor was made after the divisions had been scaled off and numbered. This minute is dated 3rd December, 1886. No. 14 is correctly marked No. 14 on the plan. It was so marked when I had done with it. I know nothing about any previous number on it. On the second map, as approved, No. 14 crosses the railway and extends to Waiwiri Lake. The effect of the alteration was to encroach on No. 11 as awarded to Kemp and Warena. I saw the memoranda on W.D. 508 signed by Major Kemp and Warena Hunia before I signed the approved plan. I understood they referred to the alteration of boundary of No. 14. When the plan was sent to me by Mr. Bridson, Eegistrar, for approval —I mean the plan of the partition—l sent it back to Mr. Bridson, and pointed out that I withheld my approval until it was explained why the plan had been sent up as it was. It did not coincide with the plan sent by me to the Survey Department. Mr. Bridson said that was how it came to him. I still refused to approve. Then Mr. Marchant wrote me a memorandum saying that the railway as shown on the plan that had been before me was incorrectly laid down, and that it had to be correctly shown. I was satisfied with that explanation, and approved the plan. I also signed the orders for title. Sir W. Buller reads from vol. 7, page 192. Witness : The entry refers to the land awarded by the Court to Kemp for the descendants of Whatanui. —After Mr. Lewis had brought it back to the Court. It was put in Kemp's name in order that he might fulfil an agreement. Mr. Lewis accepted it. lam sure it had been agreed to by Kemp and Lewis, but I don't know about descendants of Whatanui. The minutes are continuous from page 192 to page 200. Sir W. Buller reads from vol. 7, page 200, " Application from Meiha Keepa te Eangihiwinui for confirmation of the order in his own name," &c. Witness: That is the order for No. 14, to Major Kemp for himself. I do not know how the word " confirmation " came to be there, but I think the clerk took it from the interpreter. Major Kemp probably used the word " whakatuturu," and the interpreter rendered it " confirmed." lam going to say now which I have not previously said at any inquiry or proceedings, or to you. The idea that seems to be current that Kemp asked the abortive Court for a subdivision for himself is wrong. It referred to the general subdivision. When No. 10 was first brought before the Court, and Kemp asked that 800 acres should be awarded to him, it was explained that it was to pay a lawyer. I thought it was a very large area for the purpose, estimating the value of the land at 20s. per acre, and that part of it must be for Kemp, after he had paid the lawyer. The 800 acres were put in Kemp's name. It was stated that it was for the purpose of paying the lawyer. Lawyer's name was mentioned. Some time after making order for No. 10, and before making the order for No. 14, an application was made for No. 14 for Kemp himself, and the effect of this coming upon me suddenly gave me a shock, as I had looked at the 800 acres as partly for Kemp, and I did not then make the order. I left it to the very last, to give the Natives time to think of it, and object: this is sometimes necessary. No one objected, and the order was made. If there had been any objection I would not have made it. I have since heard that the 800 acres were devoted to the purposes for which it was intended, and in that case the 1,200 acres would not, in my opinion, be too much for Kemp for his personal share in the block. I am not speaking casually, but from experience in other cases of the kind. It would be what I call three averages. The Okoheriki Block at Eotorua is an instance. I could give many others if necessary. I was specially careful to challenge in No. 14, because I was then under the impression that No. 10 was for Kemp also. I say again that No. 14 was for Kemp himself. I remember giving evidence before the Eoyal Commission on this point. [Horowhenua Commission, page 134, question 104, read, with reply.] I reaffirm the reply that I gave then. I believe that there must have been another challenge which does not appear in the minute-book. [Horowhenua Commission, page 138, questions 203 and 204 read, with reply.] Both those replies of mine are quite true. [Horowhenua Commission, page 132, questions 58 and 59 read, with reply.] Those replies are correct. [Horowhenua Commission, page 139, question 219, read, with reply.] I reaffirm that answer. I remember giving evidence before the Supreme Court on these points. Do not remember reading judgment. Have heard that the judgment was based principally upon my evidence. My evidence given before the Supreme Court was entirely from memory, as was my evidence before the Eoyal Commission. I had seen neither the minute-book nor the plan. The Chairman of the Commission told me he would rather my evidence was given without reference to my minutes. I did not ask to be allowed to see the minutes, but I could see that the Commissioners did not wish me to refer to them. There was no telegram submitted to me by the Commissioners during the hearing of Horowhenua Block by the Commission. I received a telegram from the Under-Secretary of Justice —a short wire. The effect of it was rightly stated by the Commissioners in their report. The telegram reached me as I was going on board of the " Monowai," after I gave my evidence in
the Supreme Court. Ido not know what the necessity for the wire was. I wrote a reply to be sent from Gisborne. It was in March, 1895. I was not then in the Government service. I was surprised at receiving the wire. It was unusual. It related to a dispute about No. 11, as to whether there was a trust or not. In my reply I said that I had not my notes with me. I knew at the time that my notes had been destroyed. When I reached home I telegraphed that Kemp held No. 11 in a fiduciary capacity. I think I included Warena also. I said also there was only one block in which Kemp had not acted in that capacity. No. 14 was not in dispute at that time. I did not consider that the telegram referred to it. It was not in my mind. I think the Commissioners should have asked me about the telegram if they attached any importance to it, because it may have appeared inconsistent, and I could have explained the apparent inconsistency away. I have no knowledge whether the telegram commented upon by the Commissioners had been proved in evidence. The telegram was written about No. 11 only. No. 14 was not in my mind. It was Kemp's own land, and I had no idea that there would be any dispute about it. [Horowhenua Commission, page 133, question 80, read, with reply.] I reaffirm that answer. I was referring to the proceedings of the second Court. I supposed that Mr. McDonald was reading from the minutes of the second sitting. My answer shows that. [Horowhenua Commission, page 132, question 50, read, with reply.] I affirm the whole of that evidence. I think I said something more on the point. Sir W. Buller : I hand in Judge's notes. [Eeads from them : "They were afraid that if all were put in, that individuals would sell," &c. Notes handed in.] Witness : I reaffirm that evidence. It is correct. I understood that No. 11 was to be kept unbroken as a permanent dwelling-place. If No. 11 had not been broken up, Kemp would have had no separate award. As a Court we had nothing to do with what anybody got so long as all agreed. Sir W. Butter: I put in the judgment of the Chief Justice, given when the Horowhenua Block was before him. [Horowhenua Commission, page 133, question 77a, read.] Witness : My answer referred to Kemp's scheme for partition. [Horowhenua Commission page 133, question 80, read.] I had confidence in the clerk. Sir W. Buller : I put in certified copy of document I examined the witness upon. I have no more questions. Cross-examined by Mr. A. McDonald. Judge Wilson : I consider my memory sufficiently good to enable me to make alterations after a lapse of years. I have sometimes to make alterations. Mr. McDonald reads from Native Land Court minutes, vol 7, page 182, et seq., Kemp's evidence, from " I am the applicant in this case," &c, to end of Kemp's evidence. Also, evidence given by himself, pages 183 and 184. Also, evidence given by Mr. T. W. Lewis. Witness : There were three orders made on that day for Nos. 1, 2, and 3. The objection raised by Nicholson was to what is now No. 14. That was never awarded to the decendants of Te Whatanui. No. 14 was not the section awarded as No. 3. There was something said by Kemp about Whatanui's decendants having No. 14 instead of No. 9, but that they declined it. lam certain that Nicholson objected to No. 9 because it was too sandy, being near the sea. Mr. McDonald reads from vol. 7, page 188. Witness : The Ist December, 1886, was the beginning of the valid proceedings of my Court. The Chief Judge was in Palmerston at the time, and coincided with this view. Mr. McDonald reads further extracts from vol. 7, pages 188, 189, and 190: Kemp's evidence, " I am aware that we are to make subdivisions," &c. [read to end.] Witness : The 1,200 acres there described is the same 1,200 acres as mentioned in the morning of the same day and also at the first Court. It is the only 1,200 acres dealt with. Kemp's 1,200 acres has not yet appeared. Mr. McDonald quotes from vol. 7, page 200, " Application from Major Kemp for confirmation," &c. Witness : My explanation of that is that something may have previously been said about a section for Kemp. I know that No. 14 had been before the Court in the morning of the same day. Mr. McDonald reads from vol. 7, page 193. Witness : I repeat that No. 14 was awarded to Kemp for himself after an award had been made to him for the decendants of Te Whatanui. If the No. 14 had not been properly awarded to Kemp it was open to any of the owners to apply for a rehearing. The Court adjourned till the 27th instant.
Levin, Saturday, 27th February, 1897. The Court opened at 10 a.m. Present: The same. No. 1, Horowhenua No. 14, resumed. Mr. Baldwin asked to be allowed to appear on behalf of the Crown, and produced authority. Sir W. Buller objected, unless Mr. Baldwin could show statutory authority. Mr. Baldwin claimed that the Crown could appear in any Court. In this case the Crown was concerned in seeing that the grants were issued to the proper persons. He quoted authorities in support of his contention that the Crown had a right to be represented in any Court where a probability was likely to arise that its rights would be invaded. The Court would like to hear what Mr. Stafford had to say on the question.
Mr. Stafford said that he was not prepared to state what the actual legal position was, as he had not had an opportunity of looking into the question, but he was of opinion that under the circumstances it would be advisable to allow the Crown to appear as it might be the means of facilitating a final settlement of the whole question. He would ask the Court to look at the question from that aspect and allow the Crown to be represented. Mr. Beddard opposed the opinion expressed by Mr. Baldwin, that the Crown had an inherent right to appear in a Court of civil jurisdiction. He quoted authorities to show that the Crown could only appear in civil cases in the same manner as a private individual could. Mr. Stafford had not dealt with the legal aspect; his argument bore upon the expediency of the case alone, and did not touch the point at issue. The Court stated that upon hearing counsel it had decided to grant the application made by Mr. Baldwin to appear as counsel on the grounds of expediency, as it did not recognise the inherent or constitutional right of the Crown to appear before it except in a similar manner as a private individual could, but as the Horowhenua Block had been the subject of so much litigation, and the circumstances associated with it were of a peculiar nature, it seemed advisable to permit counsel to appear, but it must be understood that it was not to be looked on as a precedent in regard to other cases. No. 14 was not awarded by any Court to Kemp for the Ngatiraukawa. There was something said in my Court by Kemp about his having offered it to the Ngatiraukawa. It was never offered to them in my Court. Outsiders are much more likely to be confused than I am. They had their meetings outside as well as hearing the proceedings in the Court, whereas I only heard what took place in Court. From memory I say that I never made an order for any part of No. 14 vesting it in Kemp for the Ngatiraukawa. No. 14 did not cross the railway until after the survey. The order finally made to Kemp for No. 14 was confined to the eastward of the railway. I did not make any order to Kemp on the 25th November, 1886, for the portion of what is now known as No. 14, east of the railway, for the purpose of its being conveyed to the Ngatiraukawa. It was spoken of in the Court, but no order was made until after No. 10 was dealt with. Mr. McDonald here put a question to witness, and afterwards withdrew it. Witness : We were told in Court that part of what is now No. 14 had been offered to the descendants of Whatanui outside of the Court and that they refused it. [Horowhenua Commission, page 161, questions 89 to 98, Nicholson's evidence, read.] Witness : I should like to hear all the quotations you intend to make from the evidence taken before the Horowhenua Commission before replying. [Evidence from Horowhenua Commission read by Mr. McDonald, as follows : Page 274, answer 222, to end of witness's evidence; page 145, questions 27 to 31, Waata Tohu's evidence; page 156, question 341, Paki te Hunga's evidence; page 169, questions 354 to 360, Himiona Kowhai's evidence; page 276, question 304, Eawinia lhaia's evidence; pages 331, 332, same witness; and page 28, question 113, Major Kemp's evidence.] Witness : The evidence you have read has not altered my mind—that of Nicholson alone is worth replying to. His evidence taken with what appears in the minute-book goes to show that his objection in Court was to what is now No. 14, but I am clear that there was no order for it. The locality appears to have been mentioned. lam quite sure that No. 9 was objected to because it was sandy. At the first sitting No. 14 seems to have been sufficiently delineated to enable Nicholson to identify it, but it was taken out of the Court and brought in again as No. 9. I remember you asking my permission to take a tracing. Do not remember whether I saw the tracing. I remember that Mr. Lewis was at Palmerston on the 25th November, 1886. Kemp said in Court that he had offered the land that afterwards became No. 14 to the Ngatiraukawa and that they refused it. After No. 10 was disposed of Kemp applied to the Court to award No. 14 to him in accordance with their agreement; objectors were challenged. There is no minute of this. To Court : Kemp did not hand in a list for No. 14. [File handed to witness.] Witness : I see that lists were handed in. I had forgotten. We were more careful than I thought we were. The Court announced that it intended to sit in the afternoon, as Judge Wilson wished to get away. Mr. Stevens asked the Court not to release Judge Wilson from attendance after this case, as his evidence would be necessary in other cases. Mr. Baldwin asked that Court adjourn till Monday to give him an opportunity of getting up his case. Mr. Stafford suggested that if case were adjourned till Monday Judge Wilsons's evidence could be got through on that day. The Court agrees to adjourn accordingly. ¥he Court adjourned till 10a.m. of the Ist March.
Monday, Ist March, 1897. The Court opened at 10 a.m. Present: The same. No. 1, Horowhenua No. 14, resumed. Mr. McDonald asked to be allowed to put two questions to Judge Wilson. Judge Wilson, (to Mr. McDonald) : I know nothing about Hansard. I never see it. [Horowhenua Commission, page 131, questions 25 to 27 (witness's evidence), read to witness.] That refers fcp No. 11. I remember the questions and answers perfectly. I still say that it describes a
function of the Native Land Court in such cases. It was not a function of the Native Land Court to constitute itself a censor of voluntary arrangements. It had nothing to do but confirm them. Clause 56, Act of 1886, was my authority for confirming the voluntary arrangement. I satisfied myself that there was a voluntary arrangement in respect to No. 11, and gave effect to it precisely in the manner that the Natives wished. Ido not know of any better arrangement they could have made that would have effected their purpose so well if the men to whom the trust was given were staunch and honest. The method of ascertaining that there was a voluntary arrangement was to challenge objectors. We may have appointed successors after making orders on partition of the Horowhenua Block. If we did, some of the owners must have been dead. Cross-examined by Mr J. Stevens. Judge Wilson: The division of Horowhenua was made under the Acts of 1880 and 1882. I cannot remember the exact date the Act of 1886 came into force. We were sitting under the Act of 1880 as well as the Act of 1882. The application was made under the Division Act of 1882, and the applicants were entitled to have it heard under that Act as a matter pending. The Acts of 1880 and 1882 were inseparable. The applicants elected to proceed under the old Acts. It would be a voluntary arrangement if the people gave Kemp any part of the block for himself. The award of No. 14 to Kemp was part of the voluntary arrangement. It came under section 56. Nos. 1 to 14 all came under the arrangement. It was not necessary in the Native Land Court to obtain the direct assent of each and every owner to a voluntary arrangement. The Native Land Court is a Court of equity and Native custom as well. I say emphatically it was not only necessary or even right that every one assuming a right should be expected to give a direct assent. That would stop all our proceedings. If ten of the Horowhenua owners had been out of the colony it would not prevent a voluntary arrangement. The panui was issued giving notice of the sitting of the Court, and it was the duty of all to attend. The Court did not consider it necessary to hunt up owners. Even in papatu-pu cases the Court does not go outside its panui. It is sufficient notice to all parties. Sir Donald McLean endeavoured about 1873 to have a more extensive notice given. He tried to compel the claimants to warn in writing all possible counter-claimants. He tried to work this publicity through the Eegistrars of the Native Land Court by instructing them to send out thousands of panuis. A return was made of the panuis sent out, and it was shown to me by the Minister. The result was that the attempts for enlarged publicity were abandoned as unworkable. We acted under section 56 of " The Native Land Court Act, 1880," in making the subdivision of the Horowhenua Block; also under the provisions generally of " The Native Land Division Act, 1882." I consider I have given specific authority for making the partition. There was no gift to Kemp. A partition is necessarily a compromise, otherwise no partition could be made as each of the owners might claim a right in each division. I will cite a precedent. In some cases Natives pass from one part of the block to another leaving their cultivations. On rehearing the original decisions have been confirmed, and there has been no gift about it. This happened in one of the Opuatia Blocks. This is a propos to your saying that No. 14 was a gift to Kemp. It was not a gift. It fell to his share. I think the Opuatia was a contested case. I am not sure that it was contested in Judge Mair's Court. It was in the Appellate Court. I have known rehearings applied for where there was no opposition. No. 10 was put in Kemp's name for a certain purpose—to pay debts to Sievewright and Stout. One of their names was mentioned in Court. I forget which. It was not a gift to Kemp personally. I understood-at the time it was to pay debts incurred in connection with Horowhenua Block, and I thought the area was too large. That is why I said, when Kemp applied for the 1,200 acres, I received a shock. Subsequently I heard that the debt was incurred over other lands. Kemp said it would take the whole 800 acres to pay the debt. While we were still sitting in Palmerston I ascertained that the 800 acres was to pay Sievewright's bill. I thought then it was for Horowhenua. I suppose it was either on Kemp's or McDonald's representation that I thought Sievewright's bill referred to the 52,000 acres of Horowhenua. When Kemp applied for the 1,200 acres I received a shock, because I thought he was to have the lion's share of the 800 acres. The 1,200 acres was different; it was for him personally. The 800 acres was to pay legal expenses. I understood that the legal expenses were incurred by Kemp on behalf of his hapus. Ido not know which hapus exactly. lam not now aware that the 800 acres were given to Kemp without any condition to enable him to pay a private debt. Your suggestion that it was is the first I have heard of it. I cannot say that I was deceived in Court, or that it was specifically stated in Court that the debt was incurred in connection with Horowhenua, but that was my impression. It was to indemnify Kemp. Mr. McDonald appeared for Kemp before me in 1886. His first application, on the 25th November, 1886, was for a piece of land for the Wellington and Manawatu Eailway, to be in Kemp's name. He said he would apply for 1,200 acres to be put in Kemp's name, for the purpose of enabling him to fulfil an agreement between Kemp and McLean, which he said would be produced, but which never was produced. The 4,000 acres was first to be called No. 3, afterwards made No. 2, owing to us not being able to produce the agreement. The 4,000 acres is No. 2. No. 3 was what was afterwards No. 9. It was attempted to place No. 3 where No. 14 now is, but it was taken out of our hands, and afterwards brought back as No. 9. To Court : Section now numbered 14 was never No. 3to my knowledge. I have looked at the alleged 3 on the plan, but can make nothing of it. In any case lam not the author of it, directly or indirectly. It would not be the first of our figures that have been altered by an official of the Court without authority in this case. To Mr. Stevens : The alteration from 3to 14 was not a consequential alteration. No. 14 was before my Court to be made No. 3, but it was not made so; an objection was made and it was taken out of our Court; then came back as No. 3, where No. 9is now. No. 14 was spoken of to
the Court for Whatanui's descendants, but it never was awarded to them. It was taken away and brought back as No. 3, where 9 now is. We altered it to No. 9. Nos. 1, 2, and 3 came before my Court on the 25th November, 1886, at Palmerston. No. 3 was for the descendants of Te Whatanui. No. 3 was proposed to be where No. 14 now is. Kemp wished to give them No. 14, but they refused it. Since I have seen the minutes re No. 3of 25th November, 1886,1 assume that it was the No. 3 where No. 9is now. My own notes are gone, but the fee-return would show whether there were two fees paid for No. 3. I cannot recollect Mr. McDonald handing me a tracing showing the position of No. 3. He may have had one. We could not have made two orders for what is No. 14 and taken two 20s. fees for it—the same piece of land. It would be quite possible to change the number of a section. No. 3 was not changed to No. 14. No. 3 was intended for descendants of Te Whatanui until it became No. 9. It was dealt with by us for a time as No. 3, but other numbers came in, and when we finally dealt with it it dropped in as No. 9. There was no delineation on plan that I know of of what No. 14 is now when it was No. 3. There may have been a tracing, but I never saw it. I went by the Court plan, and was guided by my own notes. The clerk and the interpreter may have got muddled about the tracing and named it in the minutes. I cannot say what locality was referred to in the minute, " The Court orders 1,200 acres to be delineated on the plan." My impression is that it referred to what is now No. 9 and not to No. 14. I cannot remember how far the offer to give No. 14 to descendants of Whatanui went, but I know we never awarded No. 14 to them. If the minutes read that the order on the 25th November was made for No. 14, then I cannot indorse it. We antedated the orders for convenience. The first orders were, in my opinion, and in that of Chief Judge, invalid. The 1,200 acres for descendants of Whatanui had not been delineated on the plan on Ist December—that is plain from minutes. I apprehend that objectors were challenged before the orders were made by the new Court. There being no minute to that effect is nothing, as a great deal was omitted by the clerk who took them. My own notes occupied a much larger space. As regards No. 3, anything we did on 25th November lapsed. I can swear that we did not award it to the Whatanuis. Both No. 9 and No. 14 were objected to—No. 9 because it was sandy. What I understood was that they wanted the 1,200 acres to join the 100 acres and extend towards Waiwiri Lake. Ido not know who objected to No. 9. Nicholson's objection appears to have been made after the land was brought back to us by Mr. Lewis at the second Court. The objection was to what is now No. 9. Kemp or McDonald pointed out to me where the Whatanuis wanted the 1,200 acres. I was never present at any place where a proposal was made to subdivide No. 11. Some one purporting to be a descendant of Whatanui certainly objected to No. 9 on the ground that it was sandy, and the situation was altered accordingly. The objection was made at the second sitting of the Court. I do not think there is any minute of it. The objection made by Nicholson at first Court appears to me to apply to what is now No. 14, and intensifies in my mind that Kemp said in Court that No. 14 had been offered to Whatanui's descendants and that they had refused it. lam sure I never made any order for it to descendants of Whatanui. My memory may be defective ;it is quite possible that it is. There was an abortive attempt to put No. 14 through for descendants of Whatanui, but it failed, notwithstanding what appears in the minutes. This is shown by Lewis taking it out of our hands. The orders for two 1,200-acre sections were not made to Kemp, so that the Whatanuis might have the choice of which section they would take. I refused to sign the order for No. 9 until survey was altered in accordance with my order. The decendants of Whatanui had a vested right in this section. No. 14 was not handed to Kemp for descendants of Whatanui. They never had a vested right in that block. No. 3, afterwards No. 9, was awarded to Kemp for them. I cannot swear that No. 14 was ever No. 3, or that it was never No. 3. If No. 14 had been No. 3 on the 25th November, 1886, the Government could not have taken it out of our hands to give it to descendants of Whatanui. They took it out of our hands because we had not disposed of the matter. If the order for No. 3on the 25th November, 1886, had been an effective order, the Government could not have interfered with it, or traversed our order. lam firmly convinced there was no order on the 25th November, 1886, for No. 3 —over the section now known as No. 14. As I read the minutes, Nicholson's objection on the 25th November, 1886, related to what is now No. 14. Kemp said first that the Ngatiraukawa objected to No. 14. Nicholson's objection followed. The Court overruled Nicholson's objection because he was not an owner. There was no delineation on the plan of No. 14 until the order was made for it. I do not know how to explain it, but I know that No. 14 was never awarded to Kemp for descendants of Whatanui. Ido not care for the minutes. I cannot indorse them as regards No. 14. I had every confidence in Buckle, who took the minutes, but I cannot be responsible for them. No. 14 was not delineated on the plan on the 25th November, 1886. I don't think so. No. 14 was delineated on the plan on the 3rd December, 1886, when it was awarded to Kemp for himself alone. This was some days after the 1,200 acres was awarded to him for the descendants of Whatanui. Ido not know how many days. No. 9 was the block I wrote to the Survey Department about, because it was wrongly surveyed. Long after the Court was over I entered into correspondence with the Survey Department with reference to No. 14 being extended across the railway westward. The order for No. 3, made on the 25th November, 1886, related to land west of the lake adjoining Eaumatangi, 100 acres. No. 3 became No. 9on the Ist December, 1886. I am not prepared to swear that No. 3 was not No. 14, but that is my recollection, that it was not. I won't say that Nicholson's objection was to No. 14. It was Kemp who said there was an objection to No. 14. I will swear that when what is No. 14 came before the Court Kemp and one of Whatanui's descendants said it would not be accepted. The boundaries were not defined on that day—2sth November, 1886. The application from Major Kemp on the 3rd December, 1886, for confirmation of that order, &c, does not refer to any of the orders, or anything that was done on the 25th November, 1886. It was not a confirmation of any order made on that date, nor did it refer to anything done on the 18th December, 1886. The Court opened on the 27th November,
1886, and adjourned to the Ist December, 1886. Nothing was done, there being no Assessor. On the Ist December, 1886, Kemp applied for an order for 1,200 acres, for the purpose of enabling him to fulfil an agreement with the Government. This was in the morning. [Vol. 7, pages 187 and 188]. This was the same 1,200 acres that McDonald applied for on the 25th November, 1886. It was No. 3 then, and was christened No. 9in the evening. The minute says fee, 205., paid on the 25th November, 1886, as No. 2. The minute is in pencil, but coincides with what I have been saying. I cannot explain why clerk altered No. 15 to No. 14; it is a mistake of his. I don't think the minutes of the Court militate against my memory; they are simply bald. I apprehend that my memory is more reliable than the minutes. I received a telegram from the Under-Secretary for Justice. Cross-examined. Sir W. Buller submits that the telegram should be put into witness's hand, if he is to be cross-examined on it. Mr. Stevens is quite willing to wait until the telegram arrives. The Court states that the file, to which the telegram referred to is probably attached, has been sent for, and will most likely be here to-morrow morning. Mr. Stevens will leave the matter where it stands until it is known whether the telegram is available, and ask permission to be allowed to complete his examination of the witness later on. Cross-examined by Mr. Baldwin. Mr. Baldwin will not touch upon the telegram. Judge Wilson : Major Kemp was the sole certificated owner of Horowhenua when it came before my Court in 1886. There were 143, including himself, on the back of the certificate. Kemp had the whole conduct of the proceedings. He was releasing himself of his trust. Mr. McDonald was, I think, Kemp's agent. They were not the only persons who took part in the proceedings. The objectors among the owners had their rights, one Native did object on the part of a section. There were several adjournments of the Court to enable the Natives to discuss Kemp's proposal. On Eaniera's objection, the name of Ihaia Taueki was substituted for that of Kemp in one of the divisions. I told the Commission that in No. 11 I asked for information, but was told practically to mind my own business. There was evidence taken as to the voluntary arrangement. Kemp and McDonald were both on their oath when they made their statement about the arrangement. The Court was perfectly satisfied that there was a voluntary arrangement. The proposals were unchallenged. All those in the Court expressed their approval of them loudly. The assent of the tribe generally and the lack of objection convinced the Court that there was a voluntary arrangement. I never witnessed a more unanimous proceeding. On the 25th November, 1886, McDonald came into Court with a voluntary arrangement as to three sections. The Court gave full effect to the arrangement as regards two sections. There was no tracing before the Court that I know of. Ido not remember seeing any tracing. I acted upon the Court plan, not upon any tracing. I have no doubt there was a tracing, but it was not an official document. My memory may be defective, but it must be taken for what it is worth. No. 1 was ordered in favour of Kemp for Manawatu Eailway. Ido not know what the consideration was to be, or who was to receive it. Ido not think the tribe was to get anything out of it. The railway company got it for almost nothing. The second order was for No. 2—the township block. The locality was pointed out to the Court on the plan, not on a tracing. No. 2 was put on to the Court plan by Mr. Palmerson. I think the railway was shown on the plan when it came from Wellington. The order was made for No. 2on the 25th November, 1886, exactly as it was asked for. Lewis said what the block was for—a township. Mr. Lewis said there was an agreement between Kemp and the Government relating to the town. It was not produced, but I understood that all the owners were to benefit by the township. I expressed a hope that they would benefit. Kemp was a trustee in No. 2, although it was not so stated. I cannot say that No. 3 was originally applied for in the position that No. 14 is in now. [The following was read from the evidence of the Horowhenua Commission: Page 181, answers 318 to 323; page 32, answers 205 to 207; page 191, answers 241 to 242; page 142, answers 334 to 343 ; page 161, answer 92; page 258, answers 298 to 299.] My impression still is that Kemp said he had offered what is now No. 14 to the Ngatiraukawa, and that they had refused it. At the same time, there is a good deal in the evidence you have read, which supports Buckle's minutes that an order was made. It seems to me that no application was made to us, but that they came into Court and told us that No. 14 had been offered and refused. I cannot swear that no application was made, or that no order was made, but my memory is that there was none. I would not have allowed the Government to take the matter out of our hands if an order had been made. If an order was made for 1,200 acres where No. 14 now is on the 25th November, 1886, it was not an effective order. The Ngatiraukawa objected to it or it probably would have been awarded to them as No. 3. It was afterwards awarded to Kemp for himself. The order made for the 1,200 acres on the 25th November, 1886, was, I believe, for No. 9. The minute-book says so. My impression is that it was originally No. 3, and afterwards became No. 9. lam pretty sure we made no order for No. 3 over ground that was afterwards No. 14. I do not know where I ordered the 1,200 acres to be delineated on the plan on the 25th November, 1886. On the Ist December, 1886, No. 9 was brought before the Court as No. 3 by Kemp and Lewis. We could not have done anything in the matter unless Lewis had brought it back. I believe Lewis removed the matter from our Court, in open Court, but he may have done it outside the Court. The Court considered the notice of removal sufficient, and did not delineate the 1,200 acres on the map. Ido not think there was any order made for 1,200 acres to Kemp on the 25th November, 1886, before Lewis removed the question from the Court. [Horowhenua Commission, page 134, questions 86 to 97, read.] That refers to the second Court. I made the order for No. 2on the first day of the second Court also. When the second Court sat we made fresh
orders for the parcels we had awarded at the previous Court. No. 6 was awarded to Kemp as a trustee. If he has not carried out the trust I am sorry for it. No. 11 was awarded to Kemp and Warena Hunia as trustees. No. 12 was awarded to Ihaia Taueki as a trustee. The Court adjourned till 10 a.m. of the 2nd instant.
Tuesday, 2nd March, 1897. The Court opened at 10 a.m. Present: The same. No. 1, Horowhenua No. 14, resumed. Special license granted to Henare te Apatari, who is authorised to appear for Paki te Hunga and party. Judge Wilson cross-examined by Mr. Baldwin. Witness: Native Land Court minutes, Vol. 7, page 200, " Application by Major Kemp," &c.: the word "confirmation" is a mistake. I repeat that I know of no application having been made for what is now No. 14 on the 25th November, 1886. Something was said about it. No. 14 came before my Court on the Ist or 2nd December, 1886, after No. 10 had been disposed of. Kemp applied for an order for that land to himself for himself; that is the first application I remember for No. 14. Kemp mentioned No. 14 at the first Court; he said he had offered it to the Whatanuis, and they had refused it. He wanted to cut off a piece for the Whatanui people, and he then said that he had offered what is now No. 14 to Whatanui's descendants, and they had refused it. The order for 1,200 acres on the 25th November, 1886, was for No. 3—now, I believe, No. 9—that is my impression, but will not swear it. lam sure that No. 3 was not No. 14. lam certain of it; I am on my oath, but I will not swear to it one way or the other. The first application for No. 14 was made either on the Ist or 2nd December. There was no order made on either of those dates. The application stood over till the last day of the Court. I did not hurry the matter. I gave plenty of time to the people to object, and challenged very carefully because Kemp applied for the land for himself. I made the usual challenge. In this case I would be most careful to challenge objectors, because a chief was asking us to excise a piece of land for himself. I am sure objectors were challenged on the first day No. 14 came before the Court. I repeat that the clerk was wrong in using the word confirmation; there was no order to confirm. I should have had no shock when Kemp asked for the 1,200 acres if I had not been under the impression that he was to have most of the 800 acres, but I have since ascertained that all went to the lawyers. I felt almost inclined to query it, although I had no right to question any voluntary arrangement. We were careful to put this agent and spokesman on oath as a protection to the Court, so that they should not go outside and say there was no arrangement. Objectors were challenged before each order was made to give any of the owners an opportunity of objecting. I rested satisfied with the application in No. 14 without further evidence. We were satisfied that there was a voluntary arrangement, and the application was sufficient. The evidence of the voluntary arrangement given in the first Court was applicable to the second Court, although the orders of the first Court were bad. The second Court commenced de novo, one of the members of it was not a member of the first Court. I say this notwithstanding the fact that minutes of the Ist December, 1886, state that McDonald was on his former oath. Tiie evidence of the first Court would be in the mind of the second Court. I would of course make the Assessor aware of that evidence, if he had not been satisfied with my explanation he would have objected. [Horowhenua Commission, page 138, question 203, read.] All that is in the second Court. In making the order for No. 14 we must have acted on the evidence given in the first Court as well as that given in the second Court. There was very little evidence regarding it in the second Court, and this was given after No. 10 was disposed of. I think Kemp said in making the application that he was entitled to the 1,200 acres for what he had done, or something to that effect; I cannot recollect exactly. At any rate, he asked the Court to award it to him for himself, and objectors were challenged before the orders were made. Before I left Palmerston I knew that Kemp would get nothing out of the 800 acres, because the lawyers tried to grab it at once. I did not consider it my duty to explain to the people that Kemp was getting a very substantial interest in No. 14. If Kemp had asked for 10,000 acres I would have been particularly careful to ascertain that the owners agreed to it. I think that is all I could have done. I thought so then ; I think so now. I was not empowered to disturb the voluntary arrangement even by imposing restrictions. I took the voluntary arrangement as it came to me, and gave effect to it. The arrangement was made by the owners, not by outsiders. I have no doubt that McDonald was present in Court on the 3rd December, 1886, but I think Kemp made the application for No. 14, but McDonald may have done so. Kemp was certainly present, and I know he made the application on the Ist December, 1886. Cross-examined by Henare Apatari. Witness : I don't know that all the persons interested in Horowhenua were present at my Court of 1886. I should think it unlikely. There was no objector to No. 14 being awarded to Kemp. I was not present when the tribe selected Kemp as owner of No. 14. I was in Court. Kemp brought No. 14 before the Court. He claimed it, and asked to have it awarded to him. He claimed it on account of having done so much for his people in connection with this land. He said his people consented to his having it. He said nothing about his ancestral rights to it. There was nothing said about Kemp being entitled to it by occupation. No. 14 came before us as part of the voluntary scheme for partition of the whole block. Mr. Stafford asked if the telegrams from Judge Wilson to the Under-Secretary re Horowhenua, and which the Court had sent for, had arrived.
The Court informed him that they had not. Sir W. Buller suggested that Mr. Stevens should cross-examine the witness on the telegrams as they appeared in the proceedings of the Horowhenua Commission. There would then be no necessity to wait for the originals. Mr. Stafford said there was no objection to that course being followed if Mr. Stevens would be allowed to put in the telegrams without comment if they arrived after his cross-examination had concluded. Sir W. Buller objected. He would sooner detain Judge Wilson until the conclusion of the case than have the telegrams put in to discredit his evidence after he had gone. He was prepared to call his next witness as soon as his attendance could be secured. The Court announced that it was probable it might prove necessary to call further evidence, as there were several questions of law which would have to be referred to the Supreme Court for its decision. These questions could not be affected by any evidence that could be adduced, consequently further evidence would not be necessary until the points referred to were decided by the Supreme Court; but that need not delay proceedings in respect of other cases. Mr. Stafford urged that the case might go on, and judgment be given, subject to the replies to be given by the Supreme Court to the questions submitted to it. Mr. Stevens supported Mr. Stafford's contention. Sir W. Butter pointed out that counsel would be in a better position to argue this question after the legal questions referred to by the Court had been made known to them. Mr. Baldwin agreed with him. The Court stated that it would hear argument after Judge Wilson's evidence had been taken, and asked if any of the other cases could be taken. Counsel were not ready to go on with any of the other cases. The Court then decided to adjourn Horowhenua No. 14 till to-morrow. Case adjourned till the 3rd instant. The Court adjourned till 10 a.m. on the 3rd instant.
Wednesday, 3rd March, 1897. The Court opened at 10 a.m. Present: The same. No. 1, Horowhenua No. 14, resumed. The Court announced that the telegrams in question had arrived. Mr. Stevens asked to be allowed to see them before cross-examining the witness on them, and they were handed to him. The copies were given to Sir W. Buller. A telegram sent by Mr. T. W. Lewis, Under-Secretary, to Judge Wilson, which necessitated his replies, was read out by the Court. Witness said it was not the telegram he replied to. Sir W. Buller pointed out that the telegram referred to by the Eoyal Commission was dated in 1895. The telegrams sent by Judge Wilson were read out, and he still insisted that the telegrams he sent were to Mr. Haselden, Under Secretary for Justice, and that Mr. Lewis was dead when they were written. The correspondence took place in 1895, after the Supreme Court case in 1894. The telegrams seemed to be word for word the same as those he despatched in 1895, but he could not make out their being dated in 1890. In reply to the Court, Judge Wilson admitted that the purports of the telegrams were correct. It was quite possible that he had not destroyed his notes in 1890. As a matter of fact, they were not destroyed until his services were dispensed with by the Seddon Government. His telegrams to the Under-Secretary for Justice in 1895 must have been couched in similar language. Horowhenua files were searched by the Court, but no telegrams from Judge Wilson to the Under-Secretary for Justice could be found. Mr. Stafford suggested that the examination should proceed on the understanding that there were two sets of telegrams—one set in 1890 and the other in 1895. Judge Wilson cross-examined by Mr. J. Stevens. Witness : I destroyed my notes after my services had been dispensed with, about April, 1891. Ido not know how long after, but less than three years. I took no note of it. My actions as Judge were more distinctly impressed on my mind, and therefore I can reply more definitely upon them. I think it was in the summer of 1891-92 that I destroyed my notes. I received a telegram from the Government in Auckland in 1895, just as I was going on board the Monowai. It was as to whether there was a trust in Horowhenua No. 11. I said I would reply after having seen my notes. I sent a similar reply to a telegram received in 1890. When I said in 1895 that I would reply after having seen my notes I knew I had no notes. I did not say that for the purpose of misleading the Under-Secretary. It was not calculated to deceive him. It was simply to put him off until I had time to attend to the matter. I placed myself in a false position, but not the Under-Secretary. I did not know that he would take any action on my telegram. I said in my telegram of 1895 that Kemp appeared in a fiduciary capacity with one apparent exception, No. 10. I did not consider the inquiry made of me referred to No. 14, as that was Kemp's own property. The resume of the telegram in Horowhenua Commission minutes of proceedings is faulty in this respect :It does not refer to the 4,000 acres, or the square foot awarded to one owner. Ido not remember ever driving in a buggy with you, or ever having seen you before the Horowhenua Commission opened.
Sir W. Buller objected to the question. The Court ruled that the question was irrelevant. The Witness : I cannot say what effect my telegram of 1895 had on the mind of the UnderSecretary for Justice. It was sent after my notes had been destroyed. The telegram might be looked upon as disingenious ; I cannot say. My reply would not put a penny into any one's pocket or take a penny out of any one's pocket. I conceive that I was in the best position of any one to say n what capacity Kemp appeared. I suppose the Under-Secretary required correct information. I do not consider I misled him, but it is for the Court to say. I will not condemn myself. No. 14 did not come within the scope of the inquiry made of me by the Under-Secretary. I ought to have mentioned the 4,000-acre block, but I omitted it. Ec-examined by Mr. Beddard. Witness : I remember the buggy incident now. Ido not know whether my notes would decide the question of trust in Horowhenua. No application has ever been made to me to inspect my notes. I recollect the opening of the Abortive Court in 1886. Eemember McDonald explaining the position and making use of the word quoted—vol. 7, page 183. McDonald asked that Kemp should appear as agent, but I decided that he was spokesman and trustee for his people. He only could place the proposed partition before us. I was. able to state before the Eoyal Commission without reference to the minutes what each subdivision of Horowhenua was intended for. In this Court I have been able to say where I disagreed with the minutes. There were a large number of Natives present at Court in 1886. It is a fact that Kemp asked by or through McDonald to appear as a trustee for the people. A number of the subdivisions were awarded to Kemp in trust. I have always been aware of this. The railway block was also awarded to him in trust. The telegram of the Under-Secretary to me referred to No. 11 only ; anything else I said was gratuitous. I never heard of any disputes about No. 14 until after the Court at Wanganui. I had not heard of any disputes in 1890. [N.O. 87/2236 handed to witness, who admitted that it was in his handwriting, and signed by him.] There was a mistake in the boundary of No. 9as first surveyed. I would not approve it until it was altered to my satisfaction. [N.O. 87/2236 handed to witness, who identified it as his handwriting. Document read.] The instructions as to survey of No. 9 must have been given on the Ist December, 1886, because it was before us on that date. I remember that No. 3 was not delineated on the plan when it first came before us, on account of disputes about the boundary. The instructions to the surveyor were given after the matter was settled. We had had so much trouble in settling the boundaries of No. 9 that I was determined not to have any alteration made in them. When the order was made for No. 9 I made a complete description of the boundaries ; that which you have just read is a correct copy from my notes of the boundaries. I made the final order for No. 9 to the descendants of Whatanui on the Ist December, 1886. We never awarded No. 14 to them. lam strongly of opinion that the 1,200 acres that came before the Court on the 25th November, 1886, was what was afterwards No. 9. The order for No. 14 is dated the 3rd December, 1886. No. 1, the 4,000 acres, and No. 9 are ante-dated to the 25th November, 1886. It has all along been my opinion that the No. 3 before us on the 25th November, 1886, was the same land as that afterwards numbered 9. Mr. Buckle made some alterations of numbers in the minute-book. They were made after the 3rd December in Wellington—after No. 9 was delineated on the map, and after our Court was closed. He was Clerk of the first Court, and had the opportunity of knowing where No. 3 was situated, and which I believe afterwards became No. 9. The pencil-note in margin (by Jones) would be made at the end of the Court in December, 1886, to facilitate the preparation of fee return. Applications for the railway, the township, and 1,200 acres for descendants of Whatanui came before both Courts in November and December. I am satisfied that subdivision which came before the Court on the Ist December, 1886, as No. 3 was afterw<trds No. 9. [Vol. 7, page 188, read.] I have nothing more to add as to my impression that the No. 3 of the 25th November, 1886, was identical with No. 9. Kemp made the objection to No. 14. He said in Court that the descendants of Whatanui had refused it, and that they had also refused No. 9. If Nicholson made any objection to No. 14 it must have been a general objection, as I am satisfied that we never made any delineation of No. 14 for descendants of Whatanui. [Horowhenua Commission, page 131, question 35, read.] I remember that evidence. The facts are exactly as stated there. It shows, to my mind, that it was No. 3, afterwards No. 9, that was objected to. It was after No. 9 was pointed out on plan in Court that objection was made to it. There never was any intention to give the descendants of Whatanui No. 14. It was before the 1,200 acres was defined that Mr. Lewis withdrew it from the Court. He may have withdrawn it after adjournment of first Court and before opening of second Court. Mr. Buckle altered the numbers of the new Court back to those of the old Court. I assume that he thought the proceedings of the second Court confirmatory of those of the first Court. [N.O. 87/515 read to witness.] I objected to Mr. Buckle making any alterations in my minutes and orders because he had no authority to do so. I know that the alterations of numbers made in red in minute-book are Buckle's. He makes No. 12 No. 2. Mr. Beddard agrees to read Mr. Buckle's explanation of his action in altering numbers in minute-book. He points out that, although No. 12 was put down in the list, it still retained its number, as did No. 13. Witness : The proper No. 3 Mr. Buckle made No. 4. When Kemp asked for No. 14 he asked for it for himself. I said this before the Horowhenua Commission. We understood that the persons before us were owners. They were represented to us to be the owners. The conductor of a case was usually called a spokesman. Kemp was also a principal, but his position before us was that of trustee. The fact of those present calling out "Aye " was proof that they were owners. There was nothing hole-and-corner about any of the subdivisions. They were all quite public. We called for objectors to our
making orders, not for approvers, so we stopped those present calling " Aye." We judged by the "Ayes " that there was unanimous approval. There were several objectors during the course of the proceedings. I judged by the demeanour of those present that they took a keen interest in what was going on. There was nothing unusual in Kemp appearing in a fiduciary capacity. It was the proper course. No one else could Act. [Buckle's explanation read.] Buckle had no right to alter my orders. If the Registrar thought there was anything wrong he should have referred them to me. As I said before, Buckle looked upon the proceedings of the second Court as confirmatory, whereas they were de novo. It was in consequence of the dispute about the boundaries of No. 9in the morning that I made out such a careful description of them in the afternoon. The alteration was made by Kemp. They wanted to come right up to the Hokio Stream, but Kemp would not consent to it. He said that there must be two chains between their boundary and the stream, because he wanted the fish in the stream. Kemp proposed the first boundaries of No. 9. He also agreed to the alterations. I think the land for descendants of Whatanui was brought back into our Court on the Ist December, 1886. The first boundaries for No. 9 were not wrong, but they were not acceptable to Whatanui people, and Kemp proposed that they should be altered. Ido not think Lewis had anything to do with the alteration of boundaries. Mr. Baldwin would like to ask Judge Wilson two questions. Witness (to Mr. Baldwin) : My impression is that Lewis did not take out of Court any defined piece of land; it was merely the claim. It was either taken out of Court during the first Court or during the interregnum. [Horowhenua Commission, page 131, questions 35 and 36, read.] That all points to Lewis having acted in both Courts, and to the land having been defined in the records of the Court, but not necessarily on the plan. If it was defined it was No. 3, now No. 9, not No. 14. The boundaries were certainly not defined before the Ist December, 1886. Lewis did not remove the claim on the Ist December, 1886 ; it came back to us there. To Mr. Stafford: It is quite possible that an order may have been verbally made for 1,200 acres on the 25th November, 1886, but it was not finally made, and Lewis then removed it from the Court. He could not have done so if the order had been valid. He could only have done so subject to the order, which would have been an absurdity. As a matter of fact, no such order had ever been made. The order made on the 25th November, 1886, did not relate to No. 14. It must have related to No. 9, but I will not swear to it. It was the only land that came before us for the descendants of Whatanui. I will not swear that the order did apply to No. 9. To Mr. Beddard : I am strongly of opinion that the boundaries taken down on the Ist December, 1886, were the boundaries of No. 9. To Court: I cannot remember the process followed in cancelling the original certificate of Horowhenua Block to Kemp. Ido not remember whether I made an order cancelling the certificate. Ido not think it was a necessary precedent proceeding to the partition being made. I was proceeding under the Acts of 1880 and 1882. I see that I have signed the note " cancelled" on the certificate. I signed it after the Court had adjourned. I signed it at Waitara —I think, on the 14th December, 1886. W.D. 508 was the plan before our Court. Our subdivisions were shown on the plan by an authorised surveyor. This plan became an integral part of our order. When the divisions were laid out on the ground some of them had to be extended west of the railway. I ultimately approved the extension of No. 14 west of the railway. The plan of Horowhenua was not exhibited under sections 26 to 32 of the Act of 1880. I do not think it was necessary that the plan should be exhibited. The alteration, although large, was a necessary alteration. The persons directly interested signified their assent to the alteration—l mean the owners of No. 11. I did not value their consent much. I looked upon the alteration as a necessary part of our administration. I apprehend that sections 26 to 32 are meant for interlocutory orders —where rough surveys are made and require alteration. If the plan had been exhibited Ido not see who could have objected. At any rate, I did not take any action under the sections referred to. Judge Wilson asked if he was relieved from attendance. After asking counsel, the Court informed Judge Wilson that he was relieved from attendance. The Court notified that after hearing Judge Wilson's replies it proposed to go on with the case to its completion, as there would probably be other questions to refer to the Supreme Court. Sir W. Buller stated that he would be prepared to call his next witness to-morrow. Mr. Morison appeared, and asked the Court to take the Ngatiraukawa claims next. Sir W. Buller supported Mr. Morison's application. The Court saw no objection, and intimated that Mr. Morison would be informed of the date not later than one day before the Ngatiraukawa claims were taken. The Court adjourned till the 4th instant.
Thursday, 4th March, 1897. The Court opened at 10 a.m. Present: The same. No. 1, Horowhenua No. 14, resumed. Sir W. Butter : I will first call Te Eangimairehau. Te Eangimairehau sworn and examined. Witness: I belong to Muaupoko Tribe. lam one of the registered owners of Horowhenua Block. Major Kemp was the only certificated owner. There were 143 registered owners. I live at the pa, Horowhenua. I was born there. After I was grown up I went to Arapaoa for a time, and returned to Horowhenua. At the time of the Court of 1886 I was living at Horowhenua. I remember the Partition Court at Palmerston in 1886. I attended the Court, myself and the whole tribe. Some of the tribe were at Parihaka. With the exception of those at Parihaka, all the tribe
attended the Court. I can remember the names of some of those at Parihaka. Waata Muruahi and Noa Tame were there. lam clear about this. I cannot remember the others. Ihaia Taueki was at Palmerston at the time of the Partition Court. When we arrived at Palmerston we considered the subdivisions of the block, and discussed them among ourselves outside the Court —I mean the Horowhenua Block. Our discussions took place at Palmerson's place, Palmerston North—in a barn belonging to Mr. Palmerson. All those who went to Palmerston were present at the discussions, including Ihaia Taueki. At times Kemp was present, sometimes he was not. Mr. McDonald was also present at times, sometimes not. I was present at all the discussions. There were a great many of them. They began before the Court sat, and continued during the sitting of the Court. The first discussion was about those who were put up into the mountains. We wished Kemp to know our thoughts about these. Kemp consented to our proposal to put the Ngatikahungunu up on the mountains. The names were selected from the certificate. It was proposed also to put the Ngatiapa up on the mountains. This was settled. Kemp agreed to it. Then the Eaugitane were considered. They were also to be put into the mountains. Kemp was consulted about Eangitane. He agreed, and it was settled. Kemp was referred to with regard to all those objected to by Muaupoko. After this the matter was taken to the Court—l mean the arrangement for putting certain people on to the mountains. This was, I believe, the first question referred to the Court. It was one of the objects the Muaupoko had in view. Eemember when Court opened. Cannot remember date. Hamiora Mangakahia was the Assessor. There were a number of us present. McDonald was present when the Court opened. So was Kemp. When the Court opened the proceedings were not interpreted to us. We were outside the Court and Major Kemp inside. I mean that we were inside the Court, but Major Kemp was our spokesman. We heard what Kemp said. He said just what the tribe had previously arranged for him to say. Kemp made an application to have Eangitane, Ngatikahungunu and Ngatiapa placed on the mountains, in accordance with our wish. So far as I remember, it was decided that these tribes should be put on the hills. I cannot remember everything that took place. It is so long ago. I remember about some of the divisions of the land when Mangakahia was present. I know of three proposed divisions in Mangakahia's time. The first was for the line of railway. Cannot remember the acreage. Ido not know whether an order was made. McDonald asked that an order should be made. The next was the 4,000 acres sold to the Government. It was explained to the Court by Kemp. McDonald applied for an order for this block. Both these divisions had been discussed and agreed to by us outside the Court. I think the third division proposed was for the descendants of Whatanui. We discussed this and all the other divisions at the meeting-house before we came to the Court. The tribe discussed them, and came to an agreement about them. We discussed this land, the third proposed division, at the instance of Kemp. It was to be 1,200 acres. It was first proposed that it should be near Ohau, beside Te Wera-o-Whanga. The tribe wished this, and Kemp approved. This is on the south side of block. Ido not know the present name of it. I know it is in the Horowhenua Block, at the Ohau. One of the Ngatiraukawa, who was also a Ngapuhi, named Pomare, and Heni Kipa objected to the locality proposed because it was stony. This part had been talked about by Kemp in Court as for them. Kemp offered it in Court to them. I do not know exactly to whom it was offered, because I do not know for certain who the descendants of Whatanui are. It was offered to the descendants of Whatanui to comply with the word of Taueki. I heard of the promise of Taueki to the Ngatiraukawa, who were living at the time under the name of Muaupoko at Horowhenua, near the Horowhenua Stream. I saw Taueki myself. He and Whatanui lived together, and on that account, and as they were friends, the descendants of Whatanui asked Muaupoko for some land. Taueki's promise was discussed at our meetings before we went into Court. I remember that an agreement between Kemp and Sir Donald McLean was mentioned at the meetings. We all heard what the nature of the agreement was. The arrangement of the laud was afterwards. The agreement was that the descendants of Whatanui should have a piece of land. It was made long ago. The location of the land was not decided when the agreement was made. The objection by Pomare and Heni Kipa to the laud offered them at Ohau by Kemp was made in Court—the Court that Mangakahia was present at. Kemp first mentioned the matter in Court. I was present in Court, and listening. Kemp said in Court that he had offered the land at Ohau to the descendants of Whatanui. Pomare and Heni Kipa then stood up and said they objected to the position of the land, because it was stony. They asked that the land for them should be at Hokio, where the 100 acres was. A Ngatiraukawa woman called Hitau also stood up in Court and said she objected to Hokio, because it was sandy. It was mentioned then that the sandy part was at the burial-ground called Ohenga. Kemp said he would bring the boundaries further inland. I think the locality of the land was not definitely fixed at that time, as the Assessor, Mangakahia, left for the north, and the Court stopped. We waited for another Assessor. Kahui Kararehe arrived to act as Assessor. After the first Assessor left, and before the second arrived, we had a discussion about the land for Te Whatanui's descendants. We agreed to their having the land at either of the localities proposed. It was finally decided that the descendants of Whatanui should have the land at the second place offered, as they had refused the piece offered first. They were to have it near Eaumatangi, where it is now. Every one agreed to this. There were no objectors, as it had been discussed outside. No one offered any opposition to it afterwards. It was settled. There is no one occupying the land now. I understand that it belongs to Whatanui's descendants, three of whom are living on our portion. I heard that the matter was not finally settled at Mangakahia's Court. At any rate, it came before the second Court. I was present in Court every day. It was, I think, brought on after dinner in Kahui's Court, but lam not sure as to the hour, it is so long ago. The Court awarded the land to the descendants of Whatanui, and it was settled. I refer to the 1,200 acres at Eaumatangi. I did not hear of any boundaries at the time. I heard of the land only. Ido not remember seeing it on the
map. It was after we returned home that Palmerson came to survey the land. I was quite cicalas to where the 1,200 acres was situated. I saw Lewis at the Court. I did not see him taking any part in the arrangement of the 1,200 acres, but I heard that he decided the locality. There were orders made by the second Court for other divisions of the block besides those I have mentioned. I remember some of them, not all; there were so many. As I have stated before, the railway-line was the first division. Then came the 4,000 acres sold to the Government. The next I know of was the 800 acres. I cannot remember its divisional number. It was awarded to Kemp for his debts. I did not know about his debts ; they were incurred over his Wanganui lands, and had nothing whatever to do with Horowhenua. We had some talk over it, and the tribe consented to the land being given to Kemp for the purpose I have stated. Te Keepa asked for the land at Palmerston in a meeting-house, in which we also lived. He asked for a piece of land to enable him to pay his debts to the lawyers. He said it would take 800 acres. The lawyer's name was Sievewright. We consented to this request unconditionally. Ido not know what Sievewright was to get. I myself agreed. I agreed to 800 acres being given to Kemp to sell in order to pay his debt to Sievewright. All the tribe consented. I have repeated this several times. I did not hear one dissenting voice. I was in Kahui's Court when the application was made to it for the 800 acres. The purpose for which it was intended was stated in Court, as I have stated it here. There was no dissent in Court, and the order was made in favour of Kemp. The next application was for the block for us, the tribe, after those objected to had been thrown out. Ido not remember how many there were of us. We were to get 105 acres each, but on survey the area was slightly reduced, This was a matter of arrangement out of Court. It was settled out of Court. I got my 105 acres. The next was the block for the rerewaho, the people omitted from the certificate of 1873. Cannot say now many. Do not remember number of block. It was awarded to Kemp as trustee, to convey to the rerewaho. No. 11 was awarded by the same Court. I heard that the area was 15,000 acres, but it seems to be less now. Our houses are on this block. There are cultivations of ours on the land. This block was awarded to Kemp as trustee ; Warena Hunia was put in the title with him. It was said at our meetings that No. 11 was for us, the people who are living on the land, not for those outside —I mean our relatives of Ngatikahungunu, Eangitane, and Ngatiapa. They were not to be in it. I refer to the persons in the certificate, and who Muaupoko had agreed should be put on the hilly portion of the land. The block was to be permanently reserved for us, the occupants. This was decided at our meetings. It was not proposed to divide it at that time. The tribe decided to keep it intact, and not subdivide it. It also decided to put Kemp's name in the certificate as trustee. After the meeting we went to the Court and informed it that this land was for the permanent residents. Kemp gave this and all other information to the Court. All the tribe did was to decide outside the Court. Kemp applied to the Court to award No. 11 to him as trustee. This was objected to by Wirihana Hunia, who proposed that his brother Warena's name should be put in the title with Kemp's. We, the tribe, did not consent to that young man being put in. We went into a side room, where we objected to Warena being made a trustee, but Kemp ultimately agreed to his name being put into the title. Warena was not present; Wirihana was. The Court waited while we were in the room. The name of Ihaia Taueki was proposed as a co-grantee with Kemp. Kemp proposed it, but it was not agreed to. There were no others proposed. The end of the discussion in the room was that Kemp said that Warena should be a co-trustee with him for No. 11. I did not agree to this. All objected. Some left the Court and went away. I became angry, and went out of the Court. I was not in the Court when the order was made for No. 11, but I knew that it was awarded to Kemp and Warena, as I understood it, as trustees. We made no objection in Court. The name of Ihaia Taueki was put into the hill block, which I have heard is a large one. It was discussed at our meeting outside the Court. I insisted at the meeting that my name should be put into this block as trustee. Hoani Puihi also wanted to be put in as trustee. Himiona Kowhai's name was also proposed. The meeting decided that Ihaia Taueki's name only should be put in the title as trustee, not as absolute owner. I was present when this block was awarded to Ihaia Taueki by the Court as trustee. Ido not know the number of it. It was said to contain 13,000 acres. I remember an award being made to Wiremu Matakara for one square foot. All these subdivisions were discussed and agreed to by the tribe at meetings held in our meeting-house. There was no evidence given in the Court about ancestry. It was all settled out of Court, and every one was intended to have a share—even those omitted from the certificate of 1873. Ido not remember all the small divisions. I remember all the large ones. Q. Did Kemp get a share ? Mr. Baldwin and Mr. Stafford objected. The Court ruled that it was a proper question. Sir W. Buller : What share did Kemp get for himself ? Witness : Kemp got Waiwiri for himself. I have stated that we all got a share ; no one was left out. Waiwiri contains 1,200 acres. It is at Waiwiri Lake. The pa is called Papaitonga. The land is on both sides of the railway. The railway runs through it. Ido not know the number of it. I was present in Court when this 1,200 acres was applied for for Kemp. The Court challenged objectors. I did not see any objector. The land was awarded to Kemp. This was in Court. Waiwiri was talked about at our meetings outside the Court. To Assessor : This was the same land that was rejected by the descendants of Whatanui— the inland part. Now I find that it extends to Waiwiri. To Sir W. Buller: The talk about Waiwiri at our meetings was about giving it to Kemp. No one objected. The meetings of the tribe were all the same. Kemp was present at this particular meeting. Hare Pomare, of Ngapuhi, Te Hitau (female), and Heni Kipa were the descendants of Whatanui that I saw at Palmerston when the Court sat in 1886. I do not remember any others. They occupied a different house to ours, some distance off. Heard about a meeting between Mr.Lewis and the descendants of Whatanui at Palmerston at that time. Was not present. It was
held in the house of Ngatiraukawa. They did not attend our meetings. I was not present at any meeting between Kemp and descendants of Whatanui. I remember sitting of Native Land Court at Palmerston in 1890 to deal with the Horowhenua Block. I think Wirihana Hunia and others were the applicants. I attended the Court and gave evidence before it. The application before the Court related to Horowhenua No. 11. It was awarded to the two people only. I am not clear what else was done. The tribe objected to the decision that the land was for the two people only. By " we" I mean the Muaupoko. Notwithstanding our objection, the Court divided the land, No. 11, between the two persons in the title for themselves only. We did not agree that it should be so, and had a Maori meeting about it at Pipiriki, Horowhenua. Kemp, Wirihana, and, I think, Donald Fraser were present. All of the Muaupoko were there. The meeting lasted a week. Nothing definite was done. Kemp's contention was that the land belonged to the tribe, and that he was only a trustee for them. Warena Hunia denied this, and said that the law had given it to Kemp and himself for themselves only. Kemp made a proposition to the tribe ; Warena Hunia did not. I repeat that there was no definite outcome of the meeting. An application was made for a rehearing of the partition of No. 11. We also petitioned Parliament. Kemp applied for a rehearing, which was granted, and the case came before two Judges —Judge Scannell and Judge Mair. Kemp appeared in the Court in that ease. I was also present at the Court, and spoke. It was again urged by the tribe that the award to the two chiefs only should be set aside or reversed. Ido not remember what the end of the case was. Ido not know that the land was given back to the tribe. The Judges were brought to Horowhenua to inspect No. 11. The tribe again met at Pipiriki. The whole of Muaupoko assembled, including Kemp and either Wirihana or Warena Hunia. I cannot be sure whether Donald Fraser was present or not. The meeting lasted about a day, I think, and there was no result. The Court had not given a decision. I remember a case in the Supreme Court—after the meeting—in which Mr. Edwards appeared. Major Kemp brought the action. I attended the Court, and gave evidence. The case was-concluded in Wellington. The judgment of the Court upheld the contention of the tribe. Our claims to the land were recognised by it. I was one of the speakers at the meetings I have referred to. Ido not know of any other divisions of Horowhenua than No. 11 being discussed at the meetings. I have heard it is contended by some people that Kemp holds No. 14 in trust. I deny it, because it was set apart by the people for Kemp when all the other divisions were made. I did not hear it asserted before the Horowhenua Commission that Kemp held No. 14 as trustee. You are in occupation of Papaitonga now. I don't know how long you have occupied it. I have heard that Kemp has sold a part of Papaitonga to you, and that he has leased the balance of it to you. I heard that the timber on it was sold to Peter Bartholomew. I have never demanded from Kemp any share of the purchase-money, rent, or royalties. I have never heard that any members of my tribe have made any demand for a share of these moneys. I did not hear at any of our meetings any one make any claims for No. 14 or for any of the proceeds from it. I heard Waata Muruahi give evidence before the Royal Commission. [Horowhenua Commission, page 275, questions 290 to 298, and replies, read.] Those statements are untrue, in my opinion. I did not hear any statements of the kind at the meetings. Mr. Baldwin asked, with permission of McDonald and Stevens, to cross-examine this witness before them. Cross-examined by Mr. Baldwin. Witness: I said that-in 1886 No. 11 was set apart as a tribal reserve. That is, for the residential owners — the Muaupoko Tribe —the persons I considered the real owners of the 52,000 acres. The Ngatikahuugunu, and Ngatiapa, and Rangitane in the title had no right to take part in the division of the land—nor did they. The persons living on the land were the people who took part in the division of the land in 1886. They and they only. The Ngatikahungunu, Rangitane, and Ngatiapa took no part whatever in the division. The bulk of the residential Muaupoko were present at the division in 1886. A few were at Parihaka. A few of the registered owners were dead in 1886. Many of them were dead. Most of them—men and women. Some of the successors to deceased persons were children. Those I was concerned with were all grown up. McDonald did not attend our meetings in 1886 that I remember. I was under a misapprehension. Alick McDonald attended sometimes ; not always. Palmerson was not present at any of our meetings. I do not remember McDonald having a tracing of Horowhenua. He did not show it to me. There was no tracing put up in our meeting-house. We had agreed upon certain subdivisions before going into Mangakahia's Court — (1) The railway line; (2) 4,000 acres for township; (3) the 1,200 acres at Ohau. I did not see these subdivisions shown on a map in our meeting-house before we went to the Court. The locality only was indicated by name. Survey was made afterwards. Kemp and McDonald conducted the whole of the proceedings in Court. They may have had a map. The tribe did not see it. The divisions were mentioned in Court. We knew of the locations of Nos. 1 and 2. The 4,000 acres was stated to be for the Government; it was not indicated on the plan. The 1,200 acres was to be at the southern side of Horowhenua Block, adjoining Ngatiraukawa lands. These three divisions were taken iuto Court, but were not defined on the plan. McDonald applied for order for railway-line. Ido not know whether his application was granted or not. lam stating what is the truth. I did not see the divisions laid off on the plan, either inside or outside the Court. We did not see any of the divisions delineated on the plan—neither that for Ngatiraukawa nor any other. I recognised the localities of the different divisions by their Maori names. I repeat that I never saw the 1,200 acres at Ohau delineated on any plan at the Court of 1886. McDonald was acting as conductor for Kemp in the Court of 1886. I have already stated that McDonald went into Mangakahia's Court and applied for three orders—(l) for the railway; (2) for the township; (3) for the 1,200 acres at Ohau, for the descendants of Whatanui. I do not know whether the orders were made or not. At Mangakahia's Court it was intended to
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G-02 THE HOROWHENUA BLOCK: MINUTES OF PROCEEDINGS AND EVIDENCE IN THE NATIVE APPELLATE COURT UNDER THE PROVISIONS OF "THE HOROWHENUA BLOCK ACT, 1896," IN RELATION TO DIVISION XIV. OF THE SAID BLOCK., Appendix to the Journals of the House of Representatives, 1 January 1897
G-02 THE HOROWHENUA BLOCK: MINUTES OF PROCEEDINGS AND EVIDENCE IN THE NATIVE APPELLATE COURT UNDER THE PROVISIONS OF "THE HOROWHENUA BLOCK ACT, 1896," IN RELATION TO DIVISION XIV. OF THE SAID BLOCK. Appendix to the Journals of the House of Representatives, 1 January 1897
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