E—No. 1.

THE GOVERNOR'S DESPATCH

governor's despatch. 4th Dec. 1860.

1 was a tribal rather than an individual title. The individual right to possess whatever portion of land was subdued by the labour of each member of the tribe, was undoubtedly recog-nised and transmitted by descent from generation to generation: but the right to alienate land so held was one the exercise of which was restricted by the obvious necessity of maintaining the unity of the tribe, of securing its right to service from each member, and of preserving its land from going into the hands of strangers (2). It is doubtful, indeed, whether the right to alienate land in perpetuity was well understood among the Natives before the European settlement of the country (3). 9. I now beg to submit to Your Grace a few of the opinions which have been given on both the tribal title and individual right.—" Generally there is no such thing as an individual claim, clear and independent of the tribal right (4). Each Native has a right in common with the whole tribe over the disposal of the land of tlie tribe, and has an individual right to such portions as he or his parents may have regularly used for cultivations, &c. This individual claim does not amount to a right of disposal to Europeans, as a general rule" (5). * * "The land does not, generally speaking, belong to one individual, but chiefly to the tribe" (6). * * " Land is held by them either by the whole tribe or by some family of it, or sometimes by an individual member of a tribe" (7). * * "It may be observed that scarcely any of the land of the aborigines of this country can be said to be the exclusive property of one individual, though the descent through which a party can trace their claim to the land they hold is by a single person. This person can sell if he likes without the consent of his party: the p.irty selling without his consent would he a hoko tahae (dishonest sale) .....This absence of the individualization of property seems rather attributable to the state of the country than to any defect in the line of descent. The individualization of the descent is clearly recognised" (8). * * " The lands of a Tribe were portioned out according to the number of families of which it consisted, and were claimed by each family as its own; nor did any one meddle with it or occupy the land of another family without express permission" (9). * * " For the most part, the boundaries of property are well defined. In the immediate neighbourhood of such pas as are at present inhabited, land is often minutely subdivided, each separate piece belonging to some one person There might be several conflicting claimants of the same land; but however the Natives might be divided among themselves as to the validity of the several claims, still no man doubted that there was in every case a right of property subsisting in some one of the claimants" (10). * *" In this way families hold and cultivate their ground, enlarging their individual cultivations from time to time, thus establishing an indisputable title to such lands as their special and particular property All or any of these acts give an undeniable right to special property in land heretofore considered common" (11). * *," The Chiefs are the principal land holders. Every individual, however, so far as I have been able to learn, has his own estate which he has inherited from his branch of the family, and which he cultivates as he pleases"(l2). * *' " The head teacher of the tribe is about to be admitted to holy orders, which led me to ask whether he had a claim to any land which might be available for his maintenance. I was immediately informed of the exact spot, and of the grounds of his title Let the [Ngatiawa] tribe be once assembled in undisputed possession of its ancient territory, and let each freeholder's claim be duly investigated, and a Crown title granted to each as an individual proprietor, with full power to dispose of his land by sale, lease, or bequest Idesire to see each Native land owner secured by a Crown , Grant for his own individual property ....Every one of these 340 men [Ngatiawas] believes himself to be a proprietor of land in this district" (13). * * " These instances appear sufficient to prove that, according to the primitive usages originally existing in this country, such a law as positive personal right to land was acknowledged" (14). And, lastly, I beg to refer to extracts of a paper, known to have been written by one of the Interpreters in the Native Office, containing instances of sales effected by Natives at various times without reference to the Chiefs (14a). 10. But whatever may be the true theory of Native Tenure, as a theory, there is nothing more certain than that there exist among the Native Tribes themselves no fixed rules by which the practice of the Government in its dealings with them for land could be guided. Mr. McLean, whose experience extends over more than twenty years, and who has bought more than twenty millions of acres for the Crown, in his evidence before the House of Representatives last August, says (I give the substance of his answers) —" The tribal right varies so much in different parts of the country, I should like to know what particular part of the country is referred to; as the custom which prevails in one place does not in another. There are very wide exceptions to any general rule, and the exception is wider than the rule. 'In some tribes, the different hapus (families) must be consulted, in others, the Chiefs. The various hapus which compose a tribe most frequently have the right of disposal, but not always. You jnust discover the rights of the parties by enquiry of the people in the district where the land is situate and elsewhere. The Natives have no fixed rule. The custom varies in diffsrent districts. _£n the Ngatiawa tribe, a family of three or four people has been regarded as empowered to dispose of its common property: they have enjoyed this right for the last eighteen years" (15). 11. Again, Mr. Busby, formerly British resident, says : "It is certain that the Maoris had no fixed rule to guide them in the disposal of their land" (16); and the Rev. Mr. Hamlin: "All these acknowledged Native Rights were by Might often set aside, and arbitrary power ruled Tribal rights, or any uniform course of action or general plan for their guidance in the management of their lands or other affairs, I have not found to exist among the Natives of this country ; nor do I believe they have any such pian or general rule. Each party or tribe seems to have been guided by existing circumstances in the management of their affairs" (17). l|. But above all I beg Your Grace's attention to the speech delivered by Mr. McLean to the Conference of Chiefs at Rohimarama, and contradicted by none, in which he says, " No fixed law on the subject [of their lands] could be said to exist, except the law of Might. It was true that various customs relating to Native Tenure existed; but these were not in anyway permanent ; and tl»

(2) Bishop of 2V. Z. App. A 2. (3) Board, App. A 5. (4) Board, App. A 5.

(5) /ot'rf. (6) Archd. Maunsell, App. A 4. (7) Swainsan App. A 1,0.

(8) Hamlin, App. A G.

(<>) White, App. A 13

(10) Sir W. Martin, App. A 3.

(11) elarke, App. A 8 fl2) Shortland, App. A 13.

(13) _Bw/.op o/_V. Z, App. E 6. (14) Wilson, App.AlS (14a) »7«.e,App.E7

(15) McLean, App. A 1. (16) .Busty, App. All.

(17) Hamlin, App. A 6. C

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