G.—6b

2

(3) At the inquiry the contentions on behalf of the Crown were exactly the same as are set out in the Court's report of even date on petition 167 of 1925, affecting the Poor Knights Islands. (4) After a minute examination of the old records, and after a further perusal of the evidence given at the present inquiry, this Court makes the following comments : — (a) The Court is satisfied that Motukino Island has for many generations past been used by the Maoris for fishing, and bird-nesting and bird-snaring, and cultivation purposes without hindrance. (b) The Court is not satisfied that the signatories to the deed of sale in 1845 had any right to sell the land to Polack. The Court's remarks under clauses 4 (e) and 4 (/) and 4 (g) of its report of even date on petition 167 of 1925, affecting the Poor Knights Islands, apply equally well to the case of Motukino Island, which is affected by the same deed of sale. (c) The Motukino case differs from the Poor Knights case in the following respects : — (i) The deed of sale refers to the " Pokohinu Group, consisting c f one large island and three smaller islands." No mention is made of Motukino, unless it is one of the three smaller islands referred to, which is likely. Polack's own advertisements in the Maori Messenger of 1844 only refer to " the Islands of Tawhitirahi, Morotiri, and Pokohinu." (ii) Governor Fitzroy did not waive the Crown's pre-emptive right over the " Motuhinou or Pokohinu Group (Fanal Islets) " until the 27th January, 1845—i.e., after the deed of sale to Polack had been signed on the 16th January, 1845, by most of the signatories. This point seems to have been overlooked by the Land Claims Commission in 1864, as also the point that Polack advertised in the Maori Messenger of the 15th July, 1844, and the Ist August, 1844, that he had already bought the islands, though the Crown's right of pre-emption was not waived until the 27th January, 1845. (iii) There was no massacre on Motukino Island to make it sacred under the " ta'pu of blood " ; therefore there was no very strong reason against a sale. The seasonal visits for fishing and bird-snaring and cultivation purposes would not in themselves prove an absolute bar if the rightful ..owners were asked to sell. (iv) The Poor Knights Islands have not been occupied, except for burial purposes, since the massacre, whereas Motukino has been used frequently by the Maoris up to the present time. (5) The Court refers to its report of even date on petition 167 of 1925, affecting the Poor Knights Islands for the following : — (a) Schedule A : Giving summary of steps in the title from 1845, to the present. (b) Schedule B : Giving copy of deed of sale to Polack. (c) Schedule C : Giving copy of list of items in consideration paid for the three groups of islands. (d) Schedule D : Giving copy of evidence before Land Claims Commission, 1864. (e) Schedule E : Giving copy of decision of Commission of 1864. (6) The Court does not regard Motukino Island as being of any great material or sentimental value to the Natives, and the Court considers that the Natives have more or less acquiesced in the loss of Motukino by not objecting to the Crown's admitted occupation of Pokohinu Island close by. Recommendation. —The Court does not think that any good purpose would be served by returning the island to the Natives, but in view of the position as set out in this report it begs to suggest that some little consideration be shown by the Crown to the Natives interested during consolidation proceedings pending. The Court also begs to recommend that the Natives be allowed to continue to use Motukino Island for fishing and bird-nesting and bird-snaring purposes as in the past. As witness the seal of the Court and the hand of the Judge. F. 0. V. Acheson, Judge.

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