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Friend, continue to carry out a policy that will benefit the Maoris in accordance with what Lord Derby said – namely, that any well-founded complaints on the part of the Maoris will be dealt with fairly by the Government of New Zealand – and justify Her Majesty's action in giving over the whole question to be dealt fairly with by the Government.

I know what course of policy would be beneficial to the Maori people and establish friendly relations. Sufficient. – From your loving Friend,

Hori Ropiha.

To Mr. Lewis.

Tawhiao to Sir W. F. D. Jervois

(Translation)

Whatiwhatihoe, September 21, 1885.

Friend – Greeting. I have received your letter of the 27th of August, with the copies of communications from yourself, your Ministers, and Her Majesty's Government relative to the subject-matter of the petition from the Maori people that I and my fellow Native chiefs took to lay before Her Majesty's Government and the people of England. In your letter you inform us of one only of the words of Her Majesty's Government – namely, that the government of all Her Majesty's subjects in New Zealand is controlled by Ministers responsible to the Parliament. Your so informing us is well. But you did not also inform us of another important word of the Government of England with reference to the Maori people – namely, that you should intimate to your Government that they should protect and promote the welfare of the Natives by a generous consideration of all their reasonable representations. Well, we see that these directions from the Government of England are no mere random words, but have a bearing upon the petition, which petition your Ministers said had no significance, and that England would not interfere. Your communications and those of the Government of England have been circulated among the Maori people of this Island.

However, with reference to the statement made by your Ministers that they do not consider that there is any allegation in this petition that they have not answered before, I and my fellow Native chiefs would say, Where are the replies taking exception to those petitions? And why are they not quoted in connection with this petition for the consideration of the Native people? And who is it that can say that the complaints raised in those petitions are similar to those made in this?

And, further, with reference to the statement that since 1865 England ceased to interfere in the management of affairs in New Zealand, and left them to be managed by the Government of New Zealand, it may be so. But the Maori people are not aware of the reasons that led their Pakeha friends to apply to have the sole management of affairs in New Zealand; and the assent thereto of the Queen's Government was given without considering the Maori people, or making any inquiries of them. Because the right of governing and the occupation of the Island by Europeans dates from the Treaty of Waitangi; and it was left to the chiefs, the hapus of the Native people, and Her Majesty to carry out the provisions of the Treaty of Waitangi, which became a covenant on the descendants.

And, further, with reference to the statement made by your Ministers that "there has been no infraction of the Treaty of Waitangi," we would ask what portion of the Treaty of Waitangi, what hapus, or what chiefs placed the authority over the Native lands under the Native Land Court, or gave the Europeans the sole power to deal with Maori lands in that Court, as stated in the paragraph respecting the Native Land Court in that petition.

And, further, with reference to the statement respecting the presence of Native members in the Legislature, the status of those members was pointed out in the petition: Taking the basis of population, one Native member is returned for more than twenty thousand persons, whereas one European member is returned for every five thousand. When, indeed, have the applications of those members for increased representation been acceded to by that Parliament? When, indeed, have the applications of those members to have the grievances of the Native people redressed been acceded to by that Parliament? When, indeed, have the applications of those members asking that the Natives should have the power of administering their own lands been acceded to by that Parliament? Well, it is seen that the reason why the Government admitted Natives there (into Parliament) as members was merely in order that it could be said that Natives dealt with the wrongs now practised on the Maori people, and in order, too, that such wrongs should not be looked into, and finally to abolish those members.

And, further, with reference to the statement made by the Minister that Kawhia is a Native district: Well, if the Government really considered it to be such, why, then, did they assume to themselves the right to do certain acts in that district, such as establishing a military post on Native lands, which was a menace to the Maori people?

When, indeed, have the Government paid any heed to the application of Tawhiao and the people of that district desiring that Tawhiao should have the management of matters in that district?

Do you forward a copy of this letter to Her Majesty's Government. Sufficient.

King Tawhiao.

His Excellency the Governor.

Sir W. F. D. Jervois to the Right Hon. Colonel Stanley

Christchurch, December 16, 1885.

Sir – I have the honour to state that I duly forwarded to Tawhiao, a copy of your Despatch No. 39, of the 23rd June last, concerning the Maori chiefs' memorial, presented by them to Her Majesty's Government whilst in England.

I have received from him in reply a letter, a translation of which, in accordance with the request contained in the last paragraph, I transmit herewith. I have, on the advice of my Ministers, informed him that there is nothing to add to the communications that have already been made.

It is the desire and practice of the Government of this colony to treat the Native population with the most perfect justice, and, as far as possible, in the same manner as the other subjects of Her Majesty in New Zealand. I submit that no good end can be served by prolonging this correspondence. – I have, etc.,

Wm. F. Drummond Jervois.

The Right Hon. Colonel Stanley, M.P.

Sir W. F. D. Jervois to Tawhiao

Christchurch, December 16, 1885.

Sir – I have the honour to acknowledge the receipt of your letter of the 21st September last with reference to your petition to Her Majesty. I do not think there is anything to add to the communications that have already been made. I have, as you requested, forwarded a copy of your letter to Her Majesty's Government. – I have, etc.,

Wm. F. Drummond Jervois.

To Tawhiao, etc.

Tawhiao to Sir W. F. D. Jervois

Whatiwhatihoe, December 22, 1885.

To the Governor of New Zealand.

Greeting! – I am not quite certain about the copies of the letters from your Government and Her Majesty's Government that you forwarded to me on the 27th day of August 1885, in Maori only. I am very desirous that you should send me copies of the same in English, which would be right. Sufficient. – From your friend,

King Tawhiao.

The Governor, Wellington.

The Under-Secretary, Native Department, to Tawhiao

Wellington, January 29, 1886.

Friend Tawhiao – Greeting. His Excellency the Governor has forwarded to Mr. Ballance the letter you wrote to him on the 22nd December, in which you asked that copies in English of the despatches from Lord Derby, the Governor, and the Government of the colony might be supplied to you, and by direction of Mr. Ballance, I forward copies of those despatches by the mail. – From your friend,

T. W. Lewis.

Tawhiao, Whatiwhatihoe, via Alexandra, Waikato.

The Right Hon. Colonel Stanley to Sir W. F. D. Jervois

Downing Street, February 2, 1886.

Sir – I have the honour to acknowledge the receipt of your Despatch No. 127, of the 16th December, forwarding a translation of a letter which you had received from Tawhiao in reply to one founded on my predecessor's Despatch No. 39, of the 23rd June, in connection with the memorial of the Maori chiefs. I request that your Government will cause Tawhiao to be informed that I have read his letter in accordance with his desire. – I have, etc.,

Fred Stanley.

Governor Sir W. F. D. Jervois, G.C.M.G., G.C.B., etc.

The Hon. the Native Minister to Tawhiao

(Translation)

Wellington, May 6, 1886.

Friend Tawhiao – I have been requested by His Excellency the Governor to transmit for your information copy of a despatch he has received from the Right Hon. the Secretary of State for the Colonies in reference to a letter from yourself. Enough. – From your loving friend,

John Ballance.

Enclosure. – Despatch No. 7, of the 2nd February 1886.

Copy of Resolutions

The Resolutions herein written were confirmed by the chiefs and hapus assembled at Whatiwhatihoe on this 4th day of April, in the year 1886.

1. That the Treaty of Waitangi shall continue in force, by which the authority (mana) of the chiefs of the Maori people was assured to them, and which also confirms and guarantees Maori people the full, exclusive, and undisturbed possession and control of their lands, and declares that the Maori people shall be maintained in their rights.

2. That the powers conferred by the Act of the year 1852 should be maintained – viz. that a council or councils should be set up, and invested with power and full authority, and that it shall be lawful for Her Majesty to authorise such councils.

3. That the Maori people of Ao-tea-roa (New Zealand) shall act together under the law above mentioned.

4. That the Maori committees, authorised by the laws above referred to, shall be zealous in the performance of their duties.

5. That no wrong proceedings or operations of the Government towards the Maori people shall be sanctioned.

6. That the Native Land Courts Act should be repealed, and that it be left to the Maoris themselves to adjudicate on their own lands.

7. That this runanga (council) shall persist in its efforts to have the directions given by the Government of the Queen to the Government of New Zealand carried out – viz. that the rights and interests of the Maori people shall be guarded and respected. (This resolution was unanimously carried by the runanga: "Although the Government of England has nothing to do with the affairs of New Zealand, still the Government of the Queen will instruct the Government of New Zealand to devise some measures whereby justice may be done to the Maori people and their interests promoted, and that the Governor should be questioned concerning these instructions from England.")

8. That the chiefs attending this meeting be deputed to put the question to the Governor.

9. That each tribe should subscribe money for the purchase of a press to print for circulation reports of what are done and said by the Maori people.

10. That power be given to each committee to deal with lands in its own district.

These are the Resolutions that were carried.

King Tawhiao's reply in reference to the Resolutions was: "I thank you for an assent to the resolutions. I thank you, every one of you, for your discussions upon those resolutions which have been formed by you in accordance with your own wishes. I have carefully watched your discussions. There was but one tendency of all your discussions, which corresponds exactly with the object I had in view in inviting you to this meeting. Be zealous in lifting up and in sustaining (measures for the benefit) of both these islands. Hearken ye! The views held by the English people in England are precisely the same as those held by the Maori people in New Zealand."

The Hon. the Native Minister to Tawhiao

(Translation)

Auckland, April 17, 1886.

Friend – I have the honour to enclose you the reply of the Governor to the resolutions presented by the deputation (sent by you) to His Excellency on the 9th instant. There is one point in the resolutions on which I desire to offer an explanation. In the translation of Lord Derby's despatch made in the Native Department in Wellington some of the terms are incorrectly rendered. A correct translation has been made and handed to Major Te Wheoro. The despatch itself is in your possession, and there can be no doubt of its meaning, which is fully explained in the memorandum of His Excellency. – From your friend,

J. Ballance.

To Tawhiao.

Memorandum from Sir W. F. D. Jervois to the Hon. the Minister for Native Affairs

The enclosed replies to certain questions submitted to me in a memorandum from several Maori chiefs who waited upon me on the 9th instant with a view of laying before me resolutions passed at a Native meeting previously held at Whatiwhatihoe are transmitted to the Minister for Native Affairs for communication to the chiefs concerned.

In forwarding the paper to the chiefs, I request that you will inform them that I was greatly pleased at the loyal sentiments expressed by them at their interview with me towards Her Most Gracious Majesty the Queen, as well as the confidence they exhibited towards myself as her representative. I also beg that you will convey to Tawhiao, and all the chiefs concerned, how much I rejoice at the cordial feeling they exhibit towards the Government of New Zealand.

W. F. Drummond Jervois.

Government House, Auckland, April 14, 1886.

Memorandum relating to Resolutions passed at a Native Meeting held at Whatiwhatihoe on the 4th April 1886

Referring to the Resolutions in the order submitted in a paper laid before His Excellency the Governor by a deputation of Maori chiefs on the 9th April: 1. The Treaty of Waitangi vested the mana in Her Majesty the Queen, and secures to the Natives their land. That treaty, in its essential elements, has been faithfully kept by the colony. A modification was made in it by which the Natives obtained the right of selling their lands to persons outside the Government, whereas under the treaty the Government had the sole right of purchasing Native lands. This modification, the only one made in the treaty, was, however, introduced at the request of the Maoris themselves. The rights of the Maori people have been carefully preserved.

2. This appears to refer to section 71 of the Constitution Act, where reference is made to Native councils. It must be observed, however, that the section is not mandatory, as will be seen from the clause itself, and from such terms as, "it may be expedient," and "should for the present be maintained." Local self-government has been extended to the Native people in the form of Committees under the Act of 1883. These Committees have power to ascertain titles to Native lands, and to hear and decide civil cases by agreement, and, in fact, may be said to be Courts of Arbitration. Their usefulness is being proved, and a large majority of the Native people appreciate them and are using them. It has been found by experience, however, with regard to titles to land, that there is often great jealousy of the committees, and that the Natives prefer to have the land adjudicated on by the Land Courts. (This remark applies also to Resolution 6.) If any other form of Maori council than that which now exists is desired under the clause of the Constitution Act referred to, it can only be obtained by Act of Parliament of New Zealand.

No observations are necessary to Resolutions 3, 4, 5, 8, and 9.

7. This Resolution apparently refers to Lord Derby's despatch of the 23rd June 1885, but does not convey a correct impression of the terms of that document. No directions are contained in the despatch. Lord Derby expressly says that "under the present Constitution of New Zealand the government of all Her Majesty's subjects in the islands is controlled by Ministers responsible to the General Assembly, in which the Natives are efficiently represented by persons of their own race, and that it is no longer possible to advise the Queen to interfere actively in the administration of Native affairs, any more than in connection with other questions of internal government." The resolution states that there is an "instruction" contained in the despatch; but there is none. On the contrary, Lord Derby expressly recognises the right of the New Zealand Government to deal with the internal affairs of the colony without interference. The words of Lord Derby, where he refers to the Native people, are as follows: "It (the Imperial Government) should use its good offices with the Colonial Government with the view of obtaining for the Natives all the consideration which can be given to them." The particular request that Lord Derby makes, and it is only in the nature of a request, is "that the Government of New Zealand will not fail to protect and to promote the welfare of the Natives by a just administration of the law, and by a generous consideration of all their reasonable representations." He adds, "I cannot doubt that means will be found of maintaining to a sufficient extent the rights and institutions of the Maoris without injury to those other great interests which have grown up in the land, and of securing to them a fair share of that prosperity which has of necessity affected in many ways the conditions of their existence." The policy advocated by Lord Derby has been and is being carried out. A proof of this is to be found in the fact that an overwhelming majority of the Natives are satisfied with the administration of their affairs by the Government of New Zealand.

John Jervois,

Private Secretary.

Signed by order of His Excellency the Governor. Government House, Auckland, 14th April 1886.

In the Court of Appeal of New Zealand.

Tamihana Korokai and others v. The Solicitor-General

1912.

July 23, 24, 25.

Oct. 7.

C.A.

Coram.

Stout, C. – J.

Williams, J.

Edwards, J.

Cooper, J.

Chapman, J.

Skerrett, K.C., Morison and Fell for the plaintiffs.

Solicitor-General (Salmond) and Ostler for the defendant.

STOUT, C. – J. – This is a special case stated pursuant to Rule 245 of our Code of Civil Procedure. Neither party, however, asks that all the questions framed in the case should be answered. Indeed both ask that some of the questions should not be answered. The point in dispute between the parties is a narrow one. The plaintiff contends that he has a statutory right to go to the Native Land Court claiming under the Native Land Act a freehold title. The Solicitor-General contends that if he, as Solicitor-General, says the land, that is the bed of Lake Rotorua, is Crown land that concludes the matter, and the Native Land Court cannot proceed to make any inquiries as to whether the land is native customary land. That is the matter in contention, and it appears to me that it is the only question that this Court has at present to decide.

It may be necessary to refer very shortly as to how the question has arisen. In 1835 there were many English people settled in the most northerly part of New Zealand. English Church Missionaries had been there for some years, they landed first in 1814; and there were traders and whalers and others that had made New Zealand their home. One called Charles Baron de Thierry, in Marquesas, claimed that he was sovereign chief of New Zealand. He so informed Mr. James Busby, who had been appointed British Resident in New Zealand, and Mr. Busby thereupon took steps to deny any such sovereignty. He and other English residents saw the Native chiefs and they formed what was called a Confederation. The thirty-five head chiefs or heads of tribes in the most northern parts of New Zealand, that is all the country lying north of the Firth of Thames, joined in a declaration that New Zealand was an independent state under the name of the "United Tribes of New Zealand." Mr. Busby sent a copy of this declaration to the Under-Secretary of State in London, and Lord Glenelg, the Secretary of State for the Colonies, wrote to the Governor of New South Wales regarding the declaration. The Governor was directed to inform the chiefs "With reference to the desire which the chiefs have expressed on this occasion to maintain a good understanding with His Majesty's subjects, it will be proper that they should be assured in His Majesty's name that he will not fail to avail himself of every opportunity of showing his goodwill and of affording to those chiefs such support and protection as may be consistent with a due regard to the just rights of others, and to the interests of His Majesty's subjects."

Meantime the eligibility of New Zealand as a colony was being discussed both in New South Wales and in England, and ultimately in 184 °Captain Hobson, R.N., was despatched to New Zealand with two commissions, one as British Consul, and the other as Lieutenant-Governor. He reached the Bay of Islands on the 29th of January 1840, and on the 5th and 6th of February the Treaty of Waitangi was signed by many chiefs, then assembled at Waitangi in the Bay of Islands. The treaty states, inter alia: "Her Majesty, therefore, being desirous to establish a settled form of civil government with a view to avert the evil consequences which must result from the absence of the necessary laws and institutions alike to the native population and to her subjects, has been graciously pleased to empower and authorise me, William Hobson, a Captain in Her Majesty's Royal Navy, Consul and Lieutenant-Governor of such parts of New Zealand as may be or hereafter shall be ceded to Her Majesty to invite the confederated and independent chiefs of New Zealand to concur in the following articles and conditions."

Then follow three articles. The first article deals with the cession. It is as follows: "The chiefs of the Confederation of the United Tribes of New Zealand, and the separate and independent chiefs who have not become members of the confederation, cede to Her Majesty the Queen of England, absolutely and without reservation, all the rights and powers of sovereignty which the said confederation or individual chiefs respectively exercise or possess or may be supposed to exercise or possess over their respective territories as the sole sovereigns thereof."

The second and the third articles are as follows: "Her Majesty the Queen of England confirms and guarantees to the chiefs and tribes of New Zealand and to the respective families and individuals thereof, the full, exclusive, and undisturbed possession of their lands and estates, forests, and fisheries, and other properties which they may collectively or individually possess, so long as it is their wish and desire to retain the same in their possession: but the chiefs of the united tribes and the individual chiefs yield to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate, at such prices as may be agreed upon between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf." The third is as follows: "(3) In consideration thereof, Her Majesty the Queen of England extends to the natives of New Zealand her royal protection, and imparts to them all the rights and privileges of British subjects."

Copies of the treaty were taken to various parts of both islands, and the chiefs throughout New Zealand signed it, and to the present day the treaty is regarded as their Magna Charta. The Lieutenant-Governor on the 21st May 1840 issued a proclamation, proclaiming and declaring that after the date of the treaty the full sovereignty of the North Island of New Zealand vested in Her Majesty, Queen Victoria, her heirs and successors for ever.

A further proclamation was issued on the same day proclaiming and declaring that all the Islands of New Zealand vested in Her Majesty, that is, including all country between 34° 30´ north to 47° 10´ south latitude and between 166° 5´ to 179° east longitude. A mistake was made in this proclamation in that it proclaimed from 34° 30´ north instead of as was intended 34° 30´ south. The ground of the proclamation over the South Island was that of discovery. Since then it has been recognised that the lands in the islands not sold by the natives belonged to the natives. All the old authorities are agreed that for every part of land there was a native owner. Two authorities may be cited. Bishop Selwyn said as follows: "Three points then seem to be clear on this subject: (1) That there was originally a distinct owner for every habitable spot in the Northern Island: (2) That these claims have been complicated by the obvious causes of inheritance and marriage without forms of conveyance or bequest: (3) That the rights of ownership whether in one or many joint proprietors were not alienable without the consent of the tribe."

The late Sir William Martin, formerly Chief-Justice of New Zealand, said: "So far as yet appears the whole surface of the islands, or as much of it as is of any value to man, has been appropriated by the natives, and, with the exception of the part they have sold, is held by them as property. Nowhere was any piece of land discovered or heard of (by the commissioners) which was not owned by some person or set of persons… There might be several conflicting claimants of the same land: but however the natives might be divided amongst themselves as to the validity of any one 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. In this Northern Island at least it may now be regarded as absolutely certain that, with the exception of lands already purchased from the Natives, there is not an acre of land available for purposes of colonisation, but has an owner amongst the Natives according to their own customs."

The Governor and the Legislature of New Zealand accepted this position, and numerous ordinances and acts of Parliament have been passed to enable the Maoris to transmute their customary title into freehold. The position all along assumed has been that the lands are vested in the Crown, and until the Crown issues a freehold title the customary titles cannot be recognised; but that the Crown will give to all who prove that the land was theirs a freehold title. The Crown has not assumed that land could be taken or kept by the Crown from the Natives, unless the natives ceded their rights to the Crown. Thousands of purchases in both islands have been made by the Crown, and thousands of deeds of cession are in existence. The reason why the Crown did not recognise any title in the land till a grant from the Crown had issued is dealt with in the classic judgment of the late Mr. Justice H. S. Chapman, delivered in 1847 in the case of Reg. v. Symonds, and in the judgment of the then Chief-Justice Sir William Martin, who agreed with the judgment of Mr. Justice Chapman. After their judgments, the Imperial Parliament in the New Zealand Constitution Act (15 and 16 Vict. c. 72, sec. 73) recognised the native title. Section 73 of that Act is as follows: "It shall not be lawful for any person other than Her Majesty, her heirs and successors, to purchase or in any wise acquire or accept from the aboriginal Natives land of or belonging to, or used or occupied by them in common as tribes or communities, or to accept any release or extinguishment of the rights of such aboriginal Natives in any such land as aforesaid: and no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity or for any term or period, either absolutely or conditionally, and either in property or by way of lease or occupancy, and no such release or extinguishment as aforesaid, shall be of any validity or effect, unless the same be made to, or entered into with and accepted by Her Majesty, her heirs or successors. Provided always that it shall be lawful for Her Majesty, her heirs and successors, by instructions under the signet and royal sign manual, or signified through one of Her Majesty's Principal Secretaries of State to delegate her powers of accepting such conveyances or agreements, releases, or relinquishments, to the Governor of New Zealand, or the superintendent of any province within the limits of such colony, and to prescribe or regulate the terms of such conveyances or agreements, releases or extinguishments shall be accepted."

That the Crown in New Zealand recognised that it could not treat the Native land – that is, the land over which the Natives had not given up their rights of cession – as Crown in the fullest sense is plain from various things done: (1) In 1862 the first Act to provide for the ascertainment of the ownership of Native lands, and for granting certificates of title therein, and for regulating the disposal of Native lands was passed. The preamble is as follows: "Whereas by the Treaty of Waitangi entered into by and between Her Majesty and the chiefs of New Zealand, it was among other things declared that Her Majesty confirmed and guaranteed to the chiefs and tribes of New Zealand and the respective families and individuals thereof the full, exclusive, and undisturbed possession of their lands and estates, which they collectively or individually held so long as it should be their desire to retain the same: And it was further declared that the chiefs yielded to Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof might be disposed to alienate: And whereas it would greatly promote the peaceful settlement of the colony and the advancement and the civilisation of the Natives if their rights to land were ascertained, defined, and declared, and if the ownership of such lands when so ascertained, defined, and declared were assimilated as nearly as possible to the ownership of land according to British law: And whereas with a view to the foregoing objects, Her Majesty may be pleased to waive in favour of the Natives so much of the said Treaty of Waitangi as reserves to Her Majesty the right of pre-emption of their lands, and to establish Courts and to make other provision for ascertaining and defining the rights of the Natives to their lands, and for otherwise giving effect to the provisions of the Act: And it is expedient that the General Assembly of New Zealand should facilitate the said objects by enacting such provisions as are hereinafter contained."