G.—B,

4

Bepobt on the Case of Kenehuru (Eliza Mextbaitt), an Aboriginal Native, respecting Land at Newmarket alleged to have been illegally taken from her by the Government. By F. D. Fenton, Esq., Barrister-at-Law, Chief Judge of Native Land Court. In pursuance of the request of the Land Claims Commissioner made under clause 109 of " The Native Lands Act, 1873," I fixed a Court to hear the claim of Mrs. Meurant. The Court sat, and, after two adjournments for the convenience of counsel, had to decide that the clauses, failed to give the Court any jurisdiction. On communicating with the Land Claims Commissioner, he desired me to sit as a Commissioner, and ascertain the rights and equities of the case, and report the result. I must admit that I arrived at the above conclusion not without satisfaction to myself. I felt at the commencement that a Court was a very bad tribunal to which to refer a question of this sort, and I undertook the task with great reluctance. A Court is bound by rules of law, either of tradition or enactment, and its sole duty is to apply these rules to certain conditions of events. But this case is one in which, iu effect, the conduct of a previous Government is to be examined. I know of no Court that was ever held to be competent to discharge a duty of this sort. It seems to me to be a function peculiarly belonging to, and most fitly discharged by, Parliament through its Committees. Moreover the technical training of a lawyer, and the habits of thought of a person who has arrived at the office of a Judge of a Court, have necessarily exercised an injurious effect on his powers of original thinking, i.e. when he has to find a course for himself without the assistance of the rules on which he has been taught to rely. The stringent effects of a legal education must necessarily render a person less capable of taking those broad views based on equity and good conscience which generally characterize the decisions of Parliamentary Committees, and to elucidate which they are peculiarly fitted. It was with great relief, therefore, that I found my position changed into that of a Commissioner. I see no unfitness in my reporting the facts of the case, and my deductions therefrom. These deductions Parliament will accept or reject, as in its wisdom it sees fit. I have had several sittings, at which Mr. MacCormick appeared for the Crown, and Mr. Hesketh for the claimant; such witnessess were examined as these gentlemen thought fit to call. Most of the proceedings, however, consisted of arguments, the official papers being admitted and relied upon on both sides. Preface. There are two pieces of land concerned in the inquiry. The history and legal character of these two pieces of land are distinct, and the matter would be quite simple if we were at liberty to deal with each separately. But that cannot be, for the reason that when the grant of the whole of one piece and part of the other was made and taken up in 1848, it might not unfairly be inferred that Meurant concurred in the arrangement, and abandoned his claim to the remainder of the land in consideration of having a good title to part. Both learned counsel concurred that there was no expressed compromise. Indeed it is quite clear that if anything like a compromise or compact had been made in 1848, it would have been the duty of Government to preserve some evidence of it. There is no such evidence, nor in point of fact is any such thing even alleged in the official papers up to the time of the. making of the grant in 1848 ; on the other hand, Meurant's objections are certain. 1 have not allowed my mind to be influenced by the fact that statements made by Meurant or the Government were erroneous (such as Meurant's letter of 1846), unless such statements were followed by something done in consequence of them. Thus, for example, the Protector's minute of 1844 was followed by and caused a departure from the usual course pursued with other people who purchased lands from Natives under the Proclamation hereinafter mentioned. On the other hand, Mr. Meurant's error of 1846 produced no result, but furnished the occasion of just rebuke by the Government; it did not alter fact. And I cannot agree that a misstatement made by Meurant in 1846, or an erroneous paragraph in a memorial in 1848, can in any way be nsed by the Government for the justification of its neglect or mistake in 1844. As Meurant's rights were in 1844, they were in 1848. Retrospect. In 1835, on the 19th January, at Kawhia, Edward Meurant married Kenehuru, an aboriginal woman of the Waikato tribe, called Ngatimahuta. When, or after, New Zealand became a colony, Mr. Meurant obtained the office of Interpreter to Government, and resided at Auckland. About 1844 the principal tribe, resident near Auckland, and the owners of the site of that town (called Te Taou, a branch of the Ngatiwhatua), gave to Kenehuru, their relative, a piece of land containing about 30 acres, situated to the north of the Tamaki Boad, near its junction with the Auckland Eoad. These Natives were the owners of the soil, and were competent to transfer the land according to Maori custom, and they did so transfer the land to Kenehuru.* The transaction was further evidenced by a formal English conveyance, dated 6th April, 1847, mentioned hereafter. Kenehuru was the true and sole owner of the 30 acres from 1844. The Governor made a Proclamation declaring the waiver of the Crown's right of pre-emption over Native lands, excepting, however, Native land north of the Tamaki Eoad. The 30-acre piece, therefore, could never become the subject of a private purchase. The Proclamation contained conditions and stipulations, only one of which concerns the case, viz. that the Government would consult the Protector of Aborigines, a public office that existed in those days. Mr. Meurant bought, for valuable consideration, a piece of land on the south side of the said Tamaki Eoad, abutting on the Auckland Eoad, opposite to the 30-acre piece above mentioned. This contained about 14 acres, and belonged to a different set of Natives, viz. the tribe of Wetere and Epiha (Maungaunga). It formed part of a considerable piece of land given to them by the first-named Natives in former times. The transaction was evidenced by an ordinary conveyance of * There are Beveral authentic Maori letters affirming the gift. See particularly the letter addressed to the Governor in 1819 (quoted post).