NATIVE LAND CLAIMS ADJUSTMENT ACT, 1910: REPORT AND RECOMMENDATION ON PETITION No. 357/10, RELATIVE TO MATAMATA NORTH BLOCK.

Appendix to the Journals of the House of Representatives, 1912 Session I, G-14c

G.—l4c

Session I. 1912. NEW ZEALAND.

NATIVE LAND CLAIMS ADJUSTMENT ACT, 1910: REPORT AND RECOMMENDATION ON PETITION No. 357/10, RELATIVE TO MATAMATA NORTH BLOCK.

Laid before Parliament in compliance with Subsection (If) of Section 28 of the Native Land Claims Adjustment Act, 1910.

Native Land Court, 31st October, 1911. Memo, for the Hon. Sir James Carroll, Native Minister. Re Mat α-mata North Block and Petition of Hare Kercama and Others. Pursuant to section 28 of the Native Land Claims Adjustment Act, 1910, 1 duly referred the above matter to the Native Land Court for inquiry and report. The same has been duly inquired into by that Court, whose report thereon I attach hereto. I recommend that the Court be allowed by legislation to review the relative interests, and, if necessary, to amend the orders for the same. Jackson Palmbe, Chief Judge.

In the matter of the Matamata North Block, and in the matter of section 28 of the Native Land Claims Adjustment Act, 1910, and of the petition of Hare Kereama and others, referred to the Native Land Court for inquiry and report. Sir, — 1 have the honour to report as follows : — The Court sat at Auckland on Tuesday, the 26th September, 1911, ami succeeding days. Mr. E. C. Blomfield, solicitor, represented the petitioners, while Mr. T. Moresby, solicitor, represented the owners against whom the petition is directed. The issues were narrowed down to three points : — (a.) Had the descendants of the sellers any right to share in the land? (b.) Had Ngatitawhaki any right to the land? («.) Did any boundary exist between Ngatirangi and Ngatitawhaki? Before dealing with these issues, a short resume of the history of this block, at the time of its investigation and subsequently, will be necessary. The block, consisting of 5,468 acres, was investigated by Judge Munro at Hamilton on the 31st March, 1866, and ordered by Judge Etcgan at Cambridge on the 20th November, 1867. The block was awarded to ten persons. Of these ten persons five sold to J. C. Firth, who applied to the Native Land Court for partition of the interests acquired by him. Partition was made by Chief Judge Mac Donald and Judge Puckey on the 29th October, 1884, and 2,597 acres of the block, representing the interests of the sellers, were cut off at the southern end and awarded to Mr. Firth. This block was called Matamata South. The remaining 2,871 acres was awarded to the non-sellers and was called Matamata North. On the 4th. December, 1901, an Order in Council under subsection (10) of section 14 of the Native Land Court Act, 1894, was issued. This Order in Council conferred jurisdiction on the Court to determine whether or not the ten owners, as determined by the Court, held in trust, and, if such a trust existed, who were the beneficiaries under it. Judge Edger, sitting at Cambridge, on the 18th September, 1905, determined that a trust existed, and awarded the block, then found to contain 2,633 acres, to fifty-four persons ir. varying shares. There were various appeals from Judge Edger's decisions, in which some, of the petitioners joined, and the Native Appellate Court, consisting of Judges Mair and Gilfedder, sitting at Cambridge, on the 22nd April, 1907, varied Judge Edger's decision by increasing the relative interests of some of the owners, principally members of Ngatitawhaki. Judge Mair, on the 17th Juh r , 1908, divided the block into two parts, and the inevitable batch of appeals was

a.—lie

2

received, some of the petitioners again appearing as appellants. All the appeals were either dismissed or withdrawn, and the partition orders as made by Judge Mair are the existing titles to the land. Considerable evidence was adduced to this Court in support and against the issues in the petition. A careful consideration of this evidence, and a review of the evidence given at the other hearings of the block, lead me to the conclusion that the petitioners have failed to support in their entirety the issues they relied upon. lam satisfied that the sale by some of the admitted trustees should not prejudice the rights of the persons for whom they acted in that capacity. The cestui gui trust has now power over the actions of the trustees, and it is unreasonable that they should suffer by such actions to the extent of being omitted from the title altogether. The interests awarded to descendants of the sellers are, to nry mind, however, greater than they are entitled to. I would suggest that they should be reduced. The second issue of the petition, " that Ngatitawhaki have no right," has not been substantiated, and I see no reason to differ from the decisions of the former Courts on that point. That the Ngatitawhaki occupation has not been of such a permanent nature as that of Ngatirangi is clearly shown by the evidence, and I therefore consider that the interests awarded to Ngatitawhaki are in excess of what they are entitled to. The third issue, as to the existence of a boundary between Ngatirangi and Ngatitawhaki, has remained unproved, and I wholly concur with the recent decision of the Native Appellate Court in the Whangorau case. I submit this report with great diffidence, as my position is somewhat invidious, being directed to review the decisions of Judges of long experience in determining questions raised in the Native Land Court. A decision of the Native Appellate Court is also called into question, and I am certainly of the opinion that the reference should have been made to that Court and not the Native Land Court. For your information I enclose copies of the decisions of the former Court relative to this block. I have, &c, The Chief Judge, Native Land Court, Wellington. A. G. Holland, Judge.

Matamata North, Native Land Court, Cambridge, Monday, 18th September, 1905. It having been admitted hy all parties that the grantees were trustees for themselves and others, it remains to decide who are the owners, or who were the owners in 1867. Teni Tuhakaraina sets up a case for Ngatirangi and Ngatitawhaki, by ancestry and occupation ; Te Rawhiti a case for the descendants of Paretapu and Te Oro, through ancestry, occupation, and conquest; and Tua Hotene for Ngatihaua, through conquest and occupation. First, as to the case sSt up by Tua Hotene, for Ngatihaua, under conquest. The Court cannot admit this claim, for the following reason : — (1.) Neither at the original investigation in 1867 nor at the partition proceedings of 1884 was any such claim set up; on the contrary, all the witnesses agreed that the owners were Ngatirangi and Ngatitawhaki, and that the right of Ngatihaua was through gift only of a part of the land of Te Waharoa. Many of the surrounding lands were awarded to Ngatirangi and Ngatitawhaki in 1867 and subsequent years, and in no case was a claim by conquest by Ngatihaua over Ngatirangi and Ngatitawhaki. set up, either in respect of Matamata or of the surrounding lands. To now allow such a claim would be quite reversing many decisions and awards made forty years ago. The Court would not be justified in doing this, even if the evidence now given proved such a conquest, which, in the opinion of the Court, it does not. , The general history of the lands, as given by the elders forty years ago, is shortly this : There was considerable fighting some six generations ago between Ngatihaua on one side and Ngatirangi and Ngatitawhaki on the other, in the course of which Werewere, of Ngatihaua, was killed. After the taking of the Oarana Pa, Ngatihaua, under Te Oro and Haua, sought revenge, and attacked Ngatirangi and Ngatitawhaki at Tokerau, but did not defeat them; instead, peace was made between Taha, of Ngatirangi, and Te Oro and Haua, of Ngatihaua, and Taha's two daughters were shortly after given in marriage to Te Oro and Haua. Since then the two parties have lived in peace. There was no issue of the marriage between Haua and Pareomaoma, but Te Oro and Paretapu had a son, Te Ahuroa, from whom most of Ngatirangi are descended. It is said that Ngatitawhaki retired to Manugateutari; subsequently returned and attacked the occupants of the land, but were repulsed, and shortly afterwards, upon the advent of Christianity, were invited to return to the land, and have lived on it ever since. Maungatapu and Te Auowaikato have been awarded to Ngatihaua, under a gift of that land by Ngatirangi and Ngatitawhaki, as compensation for the death of Werewere. (2.) Harete Tamehana, a granddaughter of Te Waharoa, stated in 1884 that Matamata belonged to Ngatirangi, and that the right of Te Waharoa was through gift. (3.) Of the persons claimed for by Tua Hotene, only two or three have occupied the land since the European war more than forty years ago. (4.) Most of the grantees are of Ngatirangi. For these reasons the case of T'ua Hotene is rejected. The conquest claim set up by Te Rawhiti must also be disallowed, for the following additional reasons : — (1.) Te Rawhiti's own witness admitted upon cross-examination that it was not a conquest. (2.) Such conquest claim is inconsistent with the claim. Te Rawhiti also sets up, by ancestry from Taha, the chief of Ngatirangi, over whom the conquest is said to have'been made. The conquest claim set up by Te Rawhiti being rejected, his party must rest upon their right by ancestry and occupation, which is not denied. The case is somewhat different as regards

3

G.—l4c

Ngatitawhaki, who appear to have been absent from the land for a generation or two. Their right must now rest upon their permanent occupation since they were invited to return, about seventy years ago. It is asserted that they were to some extent in a dependent position, but in the opinion of the Court this has not been proved. None of Ngatitawliaki were included as grantees : this is alleged by the fact that they were Hauhaus in 1867. As to occupation, the chief occupants of the land have been Ngatirangi; as also Ngatitawliaki, since they were invited to return. We consider that those of Ngatirangi who can show descent from Paretapu and Whakapoi, the two children of Taha, have the best right. Ngatitawhaki, and those of Ngatirangi who are not from Taha, have a less right. The settling of the lists of owners, and the more precise definition of the relative interests, we leave until the Court have information as to who are the present representatives of the persons alive in 1867, who are claimed for by Teni and Te Rawhiti. Te Rawhiti, in the course of his address to the Court at the conclusion of the case, , suggested that no further names be put into the title, but that, instead, the land be made absolutely inalienable as a reserve for the occupation of the two hapus owning it. The Court cannot do this : Order in Council empowers it to ascertain the owners, and this must be done. Matamata North. Decision given by the Native Appellate Court on the 9th May, 1907. This case presents a rather peculiar appearance, inasmuch as there are four appeals and uo respondents, and it would seem that none of the parties are satisfied with the decision of the lower Court. The chief points of the appeals are : — 1. The definition of the term " trustee." 2. The claim by Ngatitawliaki that they should be placed on the same footing as Ngatirangi. 3. The claim by the descendants of Mataroa and Kupenga that their relative interests, which are set down at Is. Bd. per share, should be increased. As to the first point : It appears from the judgment of the Court below (in 1905) that all the parties admitted that " the grantees were trustees for themselves and others." It does not seem necessary, therefore, to say more than that we see no reason for dissenting from the decision. The next point is the position of Ngatitawhaki and Ngatirangi. We find that the two hapu are of the same stock, and at one time were regarded as one people. It has been alleged that Ngatitawhaki were expelled from Matamata and lived for a considerable time at Maungatautari, but in the history of these lands as given in the early records of the Native Land Court in this district we find no evidence of this expulsion, and we are of opinion that Ngatitawhaki, though they may have been absent for a time, were never driven away from Matamata, and consequently did not forfeit their right in any degree. As to Remana Nutana's clients — i.e., Ngatiraurangi —we do not consider that they possessed ancestral right; but there is no question of their long indisturbed occupation under a gift of some sort, and this Court is of the opinion that they are entitled to a slightly better position than that given them by the Court below. In fact, we consider that, considering the occupation of all parties in this block, there is not such a wide difference as that some of the owners should be entitled to two shares while others were only awarded one-eighth of a share. We have decided therefore to level up to some extent. The decision of the Native Land Court will be varied, as to the relative interests, by increasing all the one-eighth shares to one-fourth shares, and the one shares to two shares— that is, bringing Ngatitawhaki up to the level of Ngatirangi. We do not consider that any reason has been shown for adding any names to those already in the list. Judgment, llftli November, 1911, Appeal by W. G. Nicholls and others against the decision of the Native Land Court dated the 28th day of May, 1907, defining the relative interests of and repartitioning Whangorau Block. —In this case the principal ground of appeal is that the lower Court ignored an alleged ancestral boundary between Ngatitawhaki and Ngatirangi. The latter were alleged to have owned the land north of this boundary, while Ngatitawhaki owned that to the south. We have gone very carefully into all the references quoted by Mr. Moresby, counsel for the appellants. They refer to proceedings that took place beiore the Native Land Court, the Native Appellate Court, and a Royal Commission. The evidence as to the existence of this alleged boundary is not sufficiently satisfactory to justify us holding that the decision of the Native Land Court was wrong. The Natives themselves appeared to have ignored this boundary (if it ever existed), for both tribes have received lands on each side of it, and the past decision of the low r er Court in awarding the lands in this way was at the instance of the Natives themselves. It is the duty of the appellants to show that the decision arrived at by the Native Land Court is wrong. Therefore the onus of proof is upon them of showing that this boundary was laid down and recognized by each tribe. We have not had clear proof that this boundary was laid down, but if it was, then it is clear from the papatupu decisions in respect of the different blocks of land through which the boundary runs, that the Court did not act upon it nor were they asked to do so by the Natives, who obtained their orders upon an original investigation. The other grounds of appeal were not insisted upon, and the appellants have failed to prove to us that the decision appealed from was wrong.

Approximate Cost of Paper.— P-eparatiou. not given ; printing (1,400 copies). £2 5s

Authority : John Mackay, Government Printer, Wellington.— 1912.

Price 3d.]